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

Advertisements