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

2. 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

3. 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”

4. 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

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

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

7. 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 (S.C.))
But note: even if “needs” are met, a claim may still be successful

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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?

14. 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.

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