Calvin Livingston and Vicky Gibbons were common law spouses. Calvin died in February of 2016 leaving his estate, comprised of a modest home in Campbell River, British Columbia, valued at approximately $350,000 to his son, Graeme Livingston. However, Ms. Gibbons did receive $350,000 as the beneficiary of her spouse’s life insurance policy and a monthly pension of $3,000 per month.
Ms. Gibbons brought an application to obtain a portion of her deceased husband’s estate pursuant to the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. In January 2018 the parties agreed to mediate their dispute and successfully negotiated a settlement whereby she agreed to vacate the home left to Graeme, pay him the sum of $2,500 and he would pay her the sum of $50,000 in full and final settlement of her claim.
Unfortunately, Ms. Gibbons later refused to vacate the home, retained a new lawyer, and amended her original court action to claim relief under the Family Law Act, alleging that the mediated agreement was unfair, inequitable, and ought to be set aside.
Her new claim was founded on two grounds: the first was that the agreement was only meant to resolve her claim under the wills variation legislation, and not her claim as a spouse under the Family Law Act, and secondly, that she was in a vulnerable, fragile state when she signed the agreement.
Both arguments were rejected by the British Columbia Supreme Court judge, with the court finding that the Family Law Act only applied to living spouses. Ms. Gibbons appealed, arguing that the death of her spouse was a “separation” under the Family Law Act and thus entitled her to relief as a spouse to her husband’s property. She also argued that the court should have set aside the agreement.
The Appeal Court reviewed the definition of “spouse” in the Family Law Act and agreed that it contemplated living persons. The Court also considered the word “separation” in the Act and again found that the language of the statue on its face required living spouses.
With respect to her argument that the agreement was unfair, Ms. Gibbons cited Rick v. Brandsema 2009 SCC 10, with the Court noting that her counsel had not relied on this authority, but argued commercial agreement cases at the summary trial, thus the underpinning of her appeal was brought on a new footing. Her submission was “not so much that the judge erred in dismissing her argument but, rather, that the case should now be decided on correct principles, regardless of how it was argued below.”
The Appeal Court referred to Owners of the “Tasmania” v. Owners of the “City of Corinth” (1889) 15 AC 223 at 225 (U.K.H.L.), cited in S.S. “Tordenskjold” v. S.S. “Euphemia” (1908),  41 S.C.R. 154 at 163‑164, and Baker v. British Columbia Insurance Co.,  76 B.C.L.R. (2d) 367 at para. 15 (C.A.) [Baker], where courts are directed to “most jealously scrutinize” a view of the facts of a case suggested for the first time on appeal.
The Court was satisfied that the amended pleadings were broad enough to permit a review of the summary trial decision under the Rick v. Brandsema test for varying or setting aside settlement agreements.
Ultimately the Appeal Court determined that taking into account what she received outside of her deceased husband’s estate and the terms of the mediated agreement, the result was not far off her legal entitlements under the estate legislation.
It is unfortunate that Ms. Gibbons was not satisfied with what she received and did not understand that her spouse’s son also had an entitlement under his father’s estate. With a mediation, a summary trial, and an appeal, she likely spent a large portion of her inheritance, all for naught. Query why counsel sought to persuade the courts that the death of a spouse constituted a separation for the purposes of the Family Law Act when that has never been part of the law in British Columbia and was bound to fail. (Gibbons v. Livingston 2018 BCCA 443)
Lawdiva aka Georgialee Lang