Back Door Approach to Obtain Deceased Husband’s Estate Dismissed

GeorgiaLeeLang025The British Columbia Supreme Court has dismissed a wife’s application to obtain the remaining personal injury compensation paid to her husband before his untimely death via an application for lump sum child support.

Mr. Bouchard received a $1.9 million dollar award for injuries he suffered in a serious car accident, following a trial and an appeal. He received the funds in 2012, the same year he and his wife separated. Unfortunately, Mr. Bouchard became a drug addict and died without a will in 2015, still holding $322,000 from the compensation he received. The balance of the award was not accounted for.

Ms. Bouchard sought to obtain the personal injury funds being held by her husband’s lawyers in a trust account pursuant to an order of the Provincial Court which provided the funds would be held in trust as security for future child support payments. Prior to Mr. Bouchard’s receipt of the judgment, the Provincial Court found that Mr. Bouchard’s annual income was $19,000 and ordered that he pay child support for two children in the amount of $300 per month.

Ms. Bouchard made an application for child support, asking the court to order that the trust funds be paid to her in their entirety as lump sum support, but the chambers judge found that in the absence of an administrator for the estate, her application was premature.

Despite this warning, Ms. Bouchard brought a second application (Bouchard v. Bouchard 2018 BCSC 1728) in the summer of 2018, again seeking an order for lump sum child support in the amount of the trust funds held by her deceased husband’s PI lawyers, pursuant to S. 170 (g) of the Family Law Act.

Among the submissions made by Ms. Bouchard was the argument that the funds held in trust did not form part of Mr. Bouchard’s estate; that there were no creditors of the estate; and that Mr. Bouchard’s family was “fine” with her application. With respect to the quantum of the lump sum support she sought, she submitted that her “rough calculation” of the costs of raising her two children, and her “approximate average family costs” should suffice as evidence in support of her claim for the entirety of the trust funds.

The court reviewed the applicable sections of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA), namely, sections 150 and 151 of WESA and Supreme Court Family Rules 8-2 and 20-6.

The court declined to accede to Ms. Bouchard’s claim saying:

“Ms. Bouchard’s attempt to obtain these funds using this approach really asks the court to circumvent the proper procedural and substantive law.

Procedurally, Ms. Bouchard is improperly attempting to obtain orders in the absence of any representation of Mr. Bouchard’s estate. The orders she seeks could only be orders against his estate and no one has been appointed as a personal or litigation representative.”

The court also found that Ms. Bouchard’s reliance on s. 170 of the Family Law Act was misconceived as the legislation contemplated an order for child support against a living payor, not a deceased one.

What is most apparent about this case is that counsel for Ms. Bouchard had already been told by a judge of the court that without the appointment of a personal representative for the estate of her deceased spouse, no orders would be made. Clearly, it should have been obvious that Ms. Bouchard either needed to apply to be appointed administrator or some other relative of Mr. Bouchard’s should have been recruited. I can’t imagine that she could be happy about her multiple unsuccessful court applications, with the same reasons for the dismissal of same.

Lawdiva aka Georgialee Lang

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Four Reasons Why BC’s New Family Law Act is Good for Fathers

British Columbia’s new family laws will be in effect on March 18, 2013. For husbands and fathers who have felt victimized and exploited by the Family Relations Act 1979, there is every reason to be optimistic that the new law will assist them to achieve the fairness and equality they have been fighting for.

The first bit of good news is that effective March 13, 2012 the new law will apply to everyone, even if they commenced a family law proceeding under the current Family Relations Act that has not yet been concluded, with one exception. Property claims made under the old Act will be governed by that legislation, unless both parties agree that the new law should be applied.

The changes in law that will assist fathers include:

1. Pejorative terminology is removed:

The language of “custody” and “access” used in the current legislation left many parents feeling marginalized and overlooked as fully contributing parents who provided value to their children’s lives. These terms also connoted an “I win, you lose” philosophy. The language of the new Family Law Act is “parenting time” and “contact”, words that do not imply ownership of children by one parent to the exclusion of the other.

2. Endless court applications regarding children can be avoided:

For fathers who are constantly struggling to see their children regularly, or have a vacation with their child, or obtain their child’s passport for travel, or the dozens of other irritants that require fathers to go back to court, the new law has introduced and codified the role of a Parenting Coordinator. This person, who may be a counselor or a lawyer, will be empowered under the law to make binding decisions with regards to parenting issues, with the criteria being “the best interests of the child only”.

3. Informal parenting arrangements will be respected:

In scenarios where a father and mother have recently separated and have worked out a voluntary parenting plan, one parent cannot unilaterally change the plan. What often occurs is the parties will agree to a particular schedule, but when mom learns about dad’s new girlfriend, or is angry over some event involving dad, it is not uncommon for mother to unilaterally impede the regularly scheduled parenting time of the father. This new law forbids this kind of unilateral action.

4. Denial of parenting time will be treated seriously:

One of the most common complaints from fathers in high conflict marriage breakdown is the capricious, unreasonable denial of parenting time as punishment for the parties’ separation, even when the separation was requested by the mother.

The new law recognizes the importance of a father’s time with his children and will take serious steps to enforce parenting time. The key is that a father must complain to the court within 12 months of the access denial. In those circumstances the court may order compensatory parenting time to make up for the time denied. The court can also order a denying parent to go to counseling, pay a $5000.00 fine or reimburse the father for all of his expenses including travel expenses, lost wages and child care expenses incurred as a result of the refusal to comply with the informal parenting arrangement or the terms of any agreement or court order.

In my view the government has enacted new law that is meant to assist parents who do not want to be excised from their children’s lives. The important matter now is that the public be educated as to the upcoming changes so they can improve their relationships with their children.

A final note: there are many mothers who do not conduct themselves in ways described above, but when they do the emotional and financial damage to the family is devastating and destructive, both for the parents and the children.

Lawdiva aka Georgialee Lang