Until Death Do Us Part…and Beyond – Family Law Part 2

In part 1 of this blog series we began an examination of the decision in the recent Supreme Court of British Columbia case, Bouchard v. Bouchard, 2018 BCSC 1728. This case is an example of the intersection between Estate Law and Family Law and between the Wills Estates and Succession and Family Law Act. The applicant in this case was seeking an Order that lump-sum child support be paid from the Estate of the Deceased. After reviewing the law, the Honourable Madame Justice Donegan made the following comments:

[44]         To repeat, Ms. Bouchard seeks an order that Mr. Bouchard pay    her lump sum child support for the two children, pursuant to s. 170(g) of the FLA, in the full amount of the Trust Funds. She also seeks an order   that Taylor & Blair release those funds directly to her lawyer.

[45]         On the evidence adduced, the Trust Funds can only be seen as an asset of Mr. Bouchard’s estate. Ms. Bouchard’s attempt to obtain these funds using this approach really asks the court to circumvent the          proper procedural and substantive law.

[46]         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.

58]         Ms. Bouchard’s belief that administration of Mr. Bouchard’s estate is unnecessary is grounded primarily in two fundamental misunderstandings. First, she believes the Trust Funds are not an estate asset. On the evidence before this court, they certainly appear to be an asset of Mr. Bouchard’s estate.

[59]         Second, she believes there are no other claims against Mr. Bouchard’s estate. With respect, this is impossible for her to know. Ms. Bouchard was separated from Mr. Bouchard for about three years at the time of his death and was not privy to all of his activities during this time. The fact that Taylor & Blair has received no claim to the Trust Funds is no comfort. Taylor & Blair is not administering the estate. The fact that some of   Mr. Bouchard’s family members are “fine with it” is also of no comfort. No one is administering this estate. It is entirely possible that other debt claims to the estate may exist and it is also entirely possible that such claims may have priority over any child support debt the estate may owe if an award were made.

[60]         Finally, it must be said that circumventing the proper administration of Mr. Bouchard’s estate fails to recognize or consider the legitimate direct interests of the children on an intestacy distribution. As Mr. Bouchard died without leaving a spouse, the children would have a direct claim to their father’s net estate on such a distribution. Their interests need to be considered.


If you are involved in Estate litigation or have wrongfully been disinherited from a will, contact the Kushner Law Group today to schedule a consultation.


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