How Binding is that Marriage Agreement? CLEBC ESTATE PLANNING EXPRESS 15 MINUTE TOPICS PREPARED BY AMY A. MORTIMORE April 21, 2017

Introduction Outline: Brief history of dependents’ relief legislation in BC Importance of Kish v. Sobchak Estate, 2016 BCCA 65 Lessons arising from Kish Marriage agreement considerations Conclusion

Dependents’ Relief Legislation (“DRL”) DRL introduced in BC in 1920 Competing lines of authority: needs only or something more? Tataryn v. Tataryn Estate, 1994 SCC: Legal obligation Moral obligation “in light of modern values and expectations” “search is for contemporary justice”

Kish v. Sobchak Estate Kish v. Sobchak Estate Late in life relationship Children from earlier relationship Separate finances (but no written marriage agreement) Wills drafted leaving each estate to own issue Stated desire to never remarry Ms. Kish incapable and living in care facility

Kish v. Sobchak Estate BCSC awarded Ms. Kish $100,000 (19% of deceased’s assets) BCCA reduced award to $30,000

Lessons arising from Kish Purpose of DRL Importance of testamentary autonomy Role of contemporary society’s views Broad discretion remains Variation law ≠ family law

Lessons arising from Kish Purpose of DRL: To ensure that the provision made is just and adequate in all of the circumstances Not to enable the plaintiff to “build up an estate of her own” (citing from Frolek v. Frolek [1986] B.C.J. No. 1869 (S.C.)) But note: even if “needs” are met, a claim may still be successful

Lessons arising from Kish Importance of testamentary autonomy “the parties’ wishes remain an important consideration” mutual desire to keep finances separate did, in fact, keep finances separate each created wills passing their estates to their issue stated intention not to remarry or have common law relationship

Lessons arising from Kish Role of contemporary society’s views “Many today would find it unfair or inappropriate to disregard the wishes of both parties that their modest estates, built up through their own individual efforts, should be their own and that their respective children should benefit exclusively therefrom.” Consistent with trend of later in life second (or third, etc.) relationships

Lessons arising from Kish Broad discretion remains “The generosity of the language suggests that the legislature was attempting to craft a formula which would permit the courts to make orders which are just in the specific circumstances and in light of contemporary standards.” DRL claims remain fact-specific

Lessons arising from Kish Variation law ≠ family law Family law considerations affect legal obligation Not a detailed examination of notional division on separation WESA does not refer to FLA or other legislation Different considerations on marriage breakdown and death

Marriage Agreement Considerations What can we conclude from these lessons? Agreement not a bar to DRL claim, but is an important consideration Key considerations: Length of relationship and ages of spouses Age/currency of the agreement Size of estates Whether ILA was obtained

Marriage Agreement Considerations Key considerations (cont.): Whether claiming spouse contributed to assets Whether earlier spouse contributed to assets Expectations of inheritance of spouse and children Wording of the agreement – does it specifically contemplate death as well as divorce? Adequacy of disclosure of assets Did parties evidence intention to disregard terms?

Conclusion As DRL in British Columbia approaches the century mark, it continues to track the evolution of current societal expectations and realities. The BCCA’s recent decision in Kish suggests that where the parties continue to conduct themselves in a manner consistent with the terms of a marriage agreement, the court will pay deference to those terms.

AMY A. MORTIMORE T: 604.643.3177 E: AMortimore@cwilson.com