If spouses separate before one of them dies, there is a right to property division under the Family Law Act at the instance of either the surviving spouse or the deceased spouse’s estate. In Malecek v. Leiren, 2021 BCSC 1052, there was a dispute about whether spouses were separated at the time of the husband’s death. The claim was spearheaded by the husband’s daughters from his first marriage. His daughters alleged that their stepmother stuck their father in a long-term care home when he could have lived independently, refused to allow him to return home, and never visited him. The daughters said that showed the stepmother’s intention to end the marital relationship. The Court disagreed, finding no evidence to support the alleged separation.
Husband dies, leaving estate to second wife
Carol and Hall Leiren married in 1979. This was the second marriage for both of them. Carol had two sons from her prior marriage and Hall had four daughters from his prior marriage. After their marriage, Hall moved into the home that Carol owned and lived in with her and her two sons. The daughters resided with their mother. Hall’s daughters were not close with Carol, and in fact, there was evidence of significant animosity on the part of some of the daughters towards Carol. Hall died on October 19, 2016 at the age of 79, leaving a will dated October 22, 2009. By his will, he bequeathed all of his personal property to Carol and the residue of his estate to his daughters from his first marriage. His personal estate consisted of his personal belongings and a RRIF valued at $298,526. The RRIF was distributed to his daughters as per the terms of the will.
Daughters allege separation at time of father’s death
In October 2018, almost two years after Hall’s death, his daughters wrote to the executor of their father’s estate, alleging that Hall and Carol were separated at the time of his death. The daughters alleged that the separation occurred in or around 2012, pointing to a number of circumstances which they said supported a finding that Carol intended a separation and communicated that intent to Hall by conduct sometime prior to his death. They made sweeping allegations against Carol, including:
- Carol entered into a romantic relationship with a woman named Alice Fisher sometime in the 1990s or thereafter;
- Carol refused to allow Hall to return home after a major stroke in 2012, even though he was able to independently care for himself and was capable of returning home;
- Carol rarely visited Hall while he was in the various care facilities (he moved care facilities several times); and
- Carol rarely provided Hall with changes of clothes or toiletries while he was in care facilities.
The daughters asked that the executor of their father’s estate bring a family law action against Carol for a division of family property, including the family home in which Carol and Hall lived but only Carol owned. The executor did not see the basis for such an action, so the daughters applied to court for leave pursuant to s. 151 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] to file a family law claim on behalf of their father’s estate against Carol for a division of family property.
Daughters denied leave and ordered to pay special costs
The Court declined to grant leave. The onus was on the daughters to provide some reasonably cogent evidence that the claim had some reasonable prospect of success, that the potential relief/recovery justified the proposed action, and that the proceeding was overall in the best interest of the estate. They completely failed to do so, as intention is a required element:
- There must be a communication evidencing an intention to separate permanently and an action taken that demonstrates an intent to separate permanently.
- The law does not require a meeting of the minds to find an intention to separate. In other words, all that is required is an intention of one spouse to separate, and action consistent with that intention.
- The mere living separate and apart of spouses because of enforced long term residential medical care is not conclusive of an intention to end the matrimonial relationship, nor of an intention to separate permanently.
Neither Carol nor Hall communicated an intention to the other to separate permanently and neither of them took any action that might be construed as demonstrating an intent to separate permanently or to otherwise end their 37-year marriage. To the contrary, the evidence, direct and indirect, overwhelmingly supported that they remained in a marital relationship up to the time of Hall’s death:
- Carol and Hall were physically separated but that was a forced physical separation because of their respective health issues and medical care needs. Both had significant health issues and were of advanced age.
- Hall had significant health issues that began in the 1990s including high blood pressure; congestive heart failure; urinary tract infections; kidney infections; memory problems for at least 10 years before his major stroke; dementia; a compression fracture in his back from a motor vehicle accident in about 2011; a major stroke in June 2012; numerous possible mini-strokes, or transient ischemic attacks; balance and spatial problems; and mobility problems.
- During the period under consideration, Carol visited Hall when she could, had him visit the family home from time to time, had dinner with him from time to time, oversaw his care and paid his bills. The allegations that Carol rarely visited Hall and did not provide him with changes of clothes or toiletries were unsubstantiated.
- The decision for Hall to remain in long term care after his major stroke in 2012 was justified based on his medical issues and Carol’s limited abilities to care for him at home. Hall was approximately 6’ tall and weighed approximately 170 pounds. In contrast, Carol is 5’2” and weighs 125 pounds. She was unable to lift him when he had falls at home and was dealing with serious health issues of her own.
- The allegation that Carol prevented Hall from visiting the family home was simply unsubstantiated. At best, there was one single incident where Carol refused to allow Hall to visit and she explained that she was not feeling well that day.
The court found that the romantic relationship alleged to exist between Carol and Alice Fisher was completely unsubstantiated, if not an outright fabrication. Overall, the daughters claims were not just wholly unsupported, but insulting, scandalous, and outrageous to the point that the daughters were ordered to pay special costs to their father’s estate and to their stepmother (see here for the Court’s decision on costs).
Bottom line on property claims and separation before death
If separation before death is established, there is a right to property division at the instance of either the surviving spouse or deceased spouse’s estate. Evidence of separation may include a communication evidencing an intention to separate permanently and an action taken that demonstrates an intent to separate permanently. The fact that spouses live apart in a care facility due to age or health needs is not enough on its own to show intention to separate. In all estate litigation and family law matters, be warned: emotions run high, but scandalous or outrageous allegations based on conjecture and speculation must be avoided. Baseless allegations may be rebuked by a significant costs award.