Morgan (Estate) v. Morgan, 2010 BCCA 299 - Hull on Estates #218
Listen to: Morgan (Estate) v. Morgan, 2010 BCCA 299
This week on Hull on Estates, Paul Trudelle and Rick Bickhram discuss the case of Morgan (Estate) v. Morgan out of the British Columbia Court of Appeal. The issues examined are timing, fulfillment of conditions under court orders and how this case is relevant to others in similar situations.
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Paul E. Trudelle – Click here for more information on Paul Trudelle.
Rick Bickhram – Click here for more information on Rick Bickhram.
Paul Trudelle: Hi and welcome to Hull on Estates. You’re listening to episode 218 on Tuesday, August 17, 2010
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.
Paul Trudelle: And I’m Paul Trudelle.
Rick Bickhram: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
Paul Trudelle: How are you today, Rick?
Rick Bickhram: I’m doing well. How are you Paul?
Paul Trudelle: I’m very good, thanks. Enjoying an excellent summer in Toronto this year.
Rick Bickhram: And I understand the Exhibition is just about to open, a few days away so that should be enjoyable for the close of the summer.
Paul Trudelle: It’s a scary sign, I find, that every time the Ex opens up, it’s a bitter sweet time. We’re speaking of time. We came across a case, or you came across a case out of the B.C. Court of Appeal that we thought was an important one for the area of estates practitioners. And I think the lesson from this case is that timing is everything. And as we get into the facts of the case, we’ll see why timing is so important, particularly in the facts of this case. And how this may be relevant to others in similar situations. And I can see how this can arise from time to time. So let’s talk about that case. It’s the Estate of Dennis Morgan, deceased.
Rick Bickhram: And for those of you who would like to get a copy of the case, I guess the citation where you can get it off of is 2010 BCCA 299. If you plug that into your Westlaw browser, or Quick Law or CanLII, whatever you choose and I’m sure that the case will pop up there under those respective searching routes.
Paul Trudelle: And we’ll see if we can put a link to that on our website as well, with our show notes. So just to talk about that case, that was an interesting case. I hate to say interesting because they’re all interesting. That was an unusual case in that the deceased passed away on July 22, 2008. There were divorce proceedings prior to his death and the issue became whether he was divorced at the time of his death.
Rick Bickhram: Absolutely. I think this is a case that as you indicated, Paul, deals with timing and also deals with the fulfillment of conditions of Court Orders. I am gonna go through the background facts briefly and Paul, feel free to jump in, I guess, if you will.
Paul Trudelle: I will, but just before you do, and I’ll jump in now, I think it’s important to note that the judge opens up the case with his opening sentence being that the facts of this case provide a cautionary tale for lawyers, judges and others involved in the administration of divorce proceedings. And he goes on to talk about the imprudence of pronouncing Court Orders that are subject to the fulfillment of conditions, and we’ll see why that’s relevant in a second.
Rick Bickhram: Absolutely. So in this divorce proceeding, what essentially happened was there was a judicial case conference which occurred on about April 30, 2008. And it was at this judicial case conference that the respective judge granted an Order for divorce with the agreement of the parties that the divorce was not to take effect until there was the filing of a legal document that’s called the Certificate of Pleadings.
Paul Trudelle: And that Certificate is a requirement under the Rules of Court in British Columbia that must be filed before the Order can be made.
Rick Bickhram: Yeah.
Paul Trudelle: So in this case, rather than not granting the Order and having that document filed, the judge granted an Order subject to the filing of the Certificate of Pleadings.
Rick Bickhram: And interesting fact here is that when the partner…I guess the respective lawyers went back and did a clean copy of the Order, as we tend to do, the condition which was divorce…condition to the Certificate of Pleadings being filed…that condition was not included in the formal Order. And that Order was approved and entered by the Registrar. Go ahead.
Paul Trudelle: So we had an Order dated April 30, 2008 that says that the divorce was granted. Under the Rules, the divorce would take effect 31 days after the date of the Order.
Rick Bickhram: Correct. Now we’re fast forwarding a little ahead to July 9. And on July 9, the Registrar signs the Certificate of Pleadings. It’s been filed a few days before and she has it, she’s looked it over and he or she signs it. The Order for divorce is now entered. The Order stated that it had been pronounced on April 30 and that the divorce was to take 31 days after the date of the Order. So…well the date of this Order being the April 30 Order. So the issue in this case is, whether at the time of death of Mr. Morgan, whether he was still married to the respondent Mrs. Morgan.
Paul Trudelle: Right. And he died on July 22.
Rick Bickhram: Correct.
Paul Trudelle: So if the Order took effect April 30, 31 days after that would have been May 30 or June 1, they would have been divorced prior to death and that would substantially affect the rights of the surviving spouse or ex-spouse, depending on how the case turned out.
Rick Bickhram: Yeah.
Paul Trudelle: So the Court was faced with the issue of whether the Order was made April 30, taking effect 31 days after or whether it only took effect when the Certificate of Pleadings was filed on July 9. If it was the later date, July 9, then the divorce wouldn’t have taken effect. The Court then turned to consideration of the pre-condition or the condition that was made when the Order was granted and what the effect of that was. The judge…the initial judge hearing the application found that the condition wasn’t met until July 9 and therefore the divorce would only be effective 31 days after July 9. And therefore they were still legally married at the time of death.
Rick Bickhram: And the flip side to that coin was the estate and they were arguing that first of all the Order, the original Order that was entered, was entered on April 30, 2008 and there was no condition expressed in that Order (a), and (b), even if there was a condition, that that condition was merely an administrative step. It wasn’t a condition precedent to the Order for the divorce. And on that basis, the estate was arguing against the wife with the hopes of having a divorce date of April 30, so that 31 days after April 30, the parties would have been divorced before Mr. Morgan had passed away.
Paul Trudelle: Right.
Rick Bickhram: And I guess translating or twisting this case now into how can we use this into the Ontario jurisprudence. I think there’s several ways we can use it. And one way, as Paul indicated earlier in this podcast, is timing. Timing is a very important…it’s a very important fact when we’re dealing with all sorts of estate law claims. And one such instance where it’s important is in Family Law Act equalization claims. A party has 6 months to bring an equalization claim from the date of death.
Paul Trudelle: And they would only be entitled to the equalization if they were married.
Rick Bickhram: Married. Correct.
Paul Trudelle: It also has an effect on the revocation of Wills and the timing of the revocation of the Will.
Rick Bickhram: Absolutely because…
Paul Trudelle: Because the legislation stipulates that the Will is revoked on divorce. Keeping that in mind, we often advise…clients are often advised to revise a Will immediately upon considering the issue of divorce and noting that divorce can take some time and unforeseen things such as death can happen in the meantime.
Rick Bickhram: So moving ahead in this case, it was the trial judge’s decision that the divorce took effect on July 9. It was eventually appealed and on appeal, which is this recorded case that we are citing here, the Court of Appeal for British Columbia’s Court said essentially that the Certificate only came into existence…Certificate of Pleadings they’re referring to…it only came into existence by virtue of the Registrar signing the document. So the Registrar didn’t sign the document until July 9 and the filing of that Certificate can only be effective as of July 9, the earliest that the filing could have happened. And that pretty much established a precedent that Ms. Morgan was married to Mr. Morgan at the time of death.
Paul Trudelle: Right. And I think that finding is in keeping with what the Court of Appeal seems to direct with respect to the proper practice for judges and parties when granting a divorce. They admonish the parties and Courts and judges to avoid making conditional Orders. The normal practice or the preferred practice according to the Court of Appeal is not to make the Order until the pre-conditions have been met such as the Certificate of Pleadings being filed. In the normal course, or in other cases the Court or the judge wouldn’t have been able to make the Order or wouldn’t have made the Order until she had the Certificate in hand. Their finding that the Order didn’t take effect until the Certificate had been filed is in keeping with that practice and therefore the result would be the same as if the Order wasn’t made until the Certificate of Pleadings was filed.
So in summary then, I guess the important thing to take from that is that time is always of the essence. We never know what is going to come up. And Courts should…judges will probably be instructed to keep that in mind when making Orders and as per the B.C. Court of Appeal, avoid making conditional Orders because of the problems that can arise in fulfilling those conditions and determining the timing of when those conditions have been fulfilled.
Well, we want to thank you for listening. We hope that we’ve answered some more questions than we’ve raised. And we’ve raised a number of those. Of course, the matters always turn on the facts but the Morgan decision is an important one and a good one to have. It’s instructional on determining the timing of the effect of an Order such as an Order for divorce.
Rick Bickhram: I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Paul.
Paul Trudelle: Thank you, Rick.
Rick Bickhram: I look forward to podcasting with you again soon. And we look forward to hearing from you, our listeners. You can send us an email at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Rick Bickhram.
Paul Trudelle: And I’m Paul Trudelle. Thank you.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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