Saturday, August 13, 2022

Can the Personal Representative of a Deceased Separated Spouse Start a Claim Against the Surviving Former Spouse?


In a decision released on February 25, 2022, the British Columbia Court of Appeal confirmed that the personal representative of a deceased separated married spouse may bring a family law claim against the surviving spouse if they had not divorced. The case is Weaver Estate v. Weaver 2022 BCCA 79.

Lani Jo Weaver and Albert Russell Weaver married in 1993 and separated in 2005. They did not divorce, sign any separation agreement or bring any family law proceedings against each other.

Ms. Weaver died in 2020, and in November 2020, the administrator of her estate brought a family law claim in British Columbia against Mr. Weaver seeking a division of family property including jointly owned real estate in British Columbia and in the United States. Mr. Weaver brought an application in the Supreme Court of British Columbia in which he asked to dismiss the claim on the basis that because of Ms. Weaver’s death her administrator did not have standing to bring the claim and the court did not have jurisdiction to hear it. Mr. Weaver’s application was dismissed, and he appealed to the Court of Appeal.

The Court of Appeal held that Ms. Weaver’s administrator did have standing to bring the claim on behalf of her estate. The decision is based primarily on the wording of the legislation.

The Section 81 of the Family Law Act provides that on separation each spouse is entitled to an undivided one-half interest in family property and is equally responsible for family debt. The legislation provides that the one-half interest is as a tenant in common, the implication of which is that on death the one-half interest falls into the souse’s estate and does not pass to the other joint owner by right-of-survivorship as in a joint tenancy.  The word spouse is defined in section 3 to include a former spouse.

The time limits for brining a family law claim for a division of family property are set out in section 198 and depend on whether the spouses are married or are spouses by virtue of living in a marriage-like relationship. Pursuant to section 198 (2), the claim must be filed in court

(a)in the case of spouses who were married, the date

(i)a judgment granting a divorce of the spouses is made, or

(ii)an order is made declaring the marriage of the spouses to be a nullity, or

(b)in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.

(The running of the time limit may be suspended in some circumstances.)

The Supreme Court Family Law Rules contain provisions providing that claims may survive the death of a spouse and for the appointment of a litigation representative to start or continue a family law case on behalf of a deceased’s estate.

Section 150 of the Wills, Estates and Succession Act provides (with certain specified exceptions such as defamation claims) a cause of action or proceeding survives the death a person who has a claim or is a party to a proceeding.

Madam Justice DeWitt-Van Oosten, for the Court of Appeal, contrasted the Family Law Act with legislation in some of the other provinces where the relevant legislation expressly excluded claims by or against the estate of a deceased separated spouse. If the British Columbia Legislative Assembly intended to exclude claims by the personal representative of a deceased former spouse, it could have done so expressly.

Furthermore, the case law established that a surviving former spouse could bring a claim against the estate of a deceased former spouse, and it would be unfair if the personal representative of the deceased former spouse could not similarly make a claim against the surviving former spouse.

In light of the language of the legislation, this decision does not appear to me to be controversial. But there is an interesting point to consider. In view of the fact that only living spouses may divorce, is there any limitation period for a claim either made against the estate of a deceased separated married spouse, or brought on behalf of the estate of the deceased separated spouse? What if both spouses have been dead for decades?

Madam Justice DeWitt-Van Oosten commented briefly on this point:


[81]         The chambers judge did not address this issue. Nor did we receive full submissions on the point. For present purposes, I simply note that the modern principle of statutory interpretation, as applied to s. 198(2)(a) of the FLA and s. 150 of WESA, may support an interpretation that the administrator of an estate would have two years from the date of death of the separated and deceased spouse to commence a claim for division.

I confess that on reading the legislation, I am not sure how those sections support that interpretation. I hope that this will be considered in a future case, because in many cases an undue delay would be unfair to either the living separated spouse or to the beneficiaries of the deceased spouse. There may perhaps be other defences available particularly if the claimant’s delay caused the defendant to change their position to their detriment. From the perspective of the person making the claim, it is best not to delay.

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