The recent decent of Justice Donegan in Bouchard v. Bouchard, 2018 BCSC 1728, shows the importance of attending to the procedural and substantive law of estates and family law where the two overlap.
In Bouchard, the parties married in 1999 and had two children, ages 17 and 12. Mr. Bouchard was seriously injured in a motor vehicle accident and ultimately received approximately $1.9 million in damages. As a result of his injuries, Mr. Bouchard developed a drug addiction. Ms. Bouchard and the children eventually had to flee for their own safety and the parties’ separated. Ms. Bouchard commenced a family law action and obtained various interim orders, including that Mr. Bouchard pay $300 per month in child support. A judge of the Provincial Court also ordered that any funds obtained by any counsel on behalf of Mr. Bouchard be held in trust as security for child support. As such, the personal injury award was held in trust.
Mr. Bouchard died without a will on October 15, 2015. On his death, approximately $322,000 remained of the personal injury award held in trust (the “Trust Funds”). Ms. Bouchard sought an order for lump sum child support in the total amount of the Trust Funds and that the Trust Funds be paid to her directly. As of the date of the hearing, no one had applied to administer Mr. Bouchard’s estate, such that Ms. Bouchard sought “to proceed in this family law action without any representation of Mr. Bouchard’s estate”.
Justice Donegan held that Ms. Bouchard’s approach was “legally unsupportable” and dismissed the application. The orders sought could only be orders against Mr. Bouchard’s estate, and no one had been appointed as a personal or litigation representative. In addition, from a family law perspective, an order under s. 170 of the FLA may only be made while the parties are living. In contrast, s. 171 of the FLA establishes rules relating to support obligations after the death of the payor. Here, although Ms. Bouchard did not rely on s. 171, such an order would not be available as there was insufficient evidence to address the factors required to be considered in deciding whether to make the order. Moreover, the Order could not be quantified in the “unusual manner” proposed, which included an affidavit by Ms. Bouchard regarding her “rough estimate for raising children”, “approximate family costs”, and “other costs associated with the break up”.
The Order was also not supportable as a matter of estates law. Any order in Ms. Bouchard’s favour would only create a debt against Mr. Bouchard’s Estate, which would not entitle her to an order for the amount of the debt as debts against estates must be considered in terms of priority by the personal representative. In addition, the application was grounded in two fundamental misunderstandings. First, although Ms. Bouchard believed the trust funds were not an asset of the estate, the judge remarked that on the evidence presented, “they certainly appear[ed] to be”. It was also not sufficient that Ms. Bouchard believed there to be no other claims against Mr. Bouchard’s estate. She had been separated from Mr. Bouchard for about three years by the date of his death and was not aware of his activities. That other members of Mr. Bouchard’s family were “fine with it” was also of no comfort. The judge emphasized that no one was administering Mr. Bouchard’s estate, and that it were possible that other debt claims could exist, including with priority over any child support debt. Finally, circumventing the proper administration of Mr. Bouchard’s estate failed to recognize or consider the legitimate direct interests of the children’s interests as Mr. Bouchard’s intestate heirs.
Bouchard provides an interesting illustration of the increasing intersection of family and estates law, and of the importance of considering both areas of law where the two collide. Here, the procedural and substantive requirements of family and estates law precluded the order sought. For assistance with your family law or estates matters, please contact a representative of Clark Wilson LLP’s Estates & Trusts or Family Law Practice Groups.
