Vancouver, BC -- (ReleaseWire) -- 03/20/2019 --Last month, the Vancouver estate lawyers at Kushner Law Group began a two-part blog series that centred around the case of Bouchard v. Bouchard, 2018 BCSC 1728. In the case, the applicant was seeking an Order that lump-sum child support be paid from the Estate of the Deceased in the form of the trust funds left to the children. The blog shares how the Honourable Madame Justice Donegan concluded the case. For more go to: http://www.kushnerlaw.ca/until-death-do-us-partand-beyond-family-law-part-2/

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. 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.

Estate law is often complex, and in this case, the judge turned down the applicant's request to receive a childcare lump sum payment. Under the old common law, unless the parties had agreed or a court had ordered that support obligations would continue after death, support obligations ended upon the payor's death. Under the FLA, it remains the case that the parties can agree or a court can order that a payor's support obligation continues after death and is a debt of the estate:

The team members at Kushner Law Group have experience acting as wills and estate lawyers on behalf of various parties. This includes named beneficiaries under a will who seek to protect their inheritance, unnamed beneficiaries who have been left out of a will, personal representatives appointed under a will or by a court, and persons seeking to inherit when a close relative has died without a will.

To learn more, contact the Kushner Law Group and schedule a consultation.

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For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.

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Lars Kushner
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