New Family Law Act and Wills Variation Act Claim


The family law of British Columbia has gone through a major change as a result of the new Family Law Act, which replaced the Family Relations Act and became effective on March 18, 2013.

Under the old Family Relations Act, unmarried spouses are excluded from the operation of the property division and pension division sections, which are available for married spouses only. This means there is no automatic property sharing provisions for unmarried spouses.

As such, under the old Act, a common-law spouse can only rely on common law remedies in order to claim a share of the other spouse’s assets. For instance, a common-law spouse may claim that he or she has made a direct or indirect contribution to the accumulation of the assets of the other spouse such that he or she is entitled to a share of the assets, failing which, he or she may not share the assets of the other spouse.

Under the new Act, the property and pension division sections apply to both married and unmarried spouses. This change may have some impact on estate litigation, and in particular, on Wills Variation Act claims brought by a common-law spouse.  The Supreme Court of Canada ruled in its landmark decision in Tataryn v. Tataryn Estate that the proper analysis of a Wills Variation Act claim should first start with the analysis of the legal obligations of the testator. The legal obligation that a testator owes his/her spouse is determined by examining the surviving spouse’s entitlement under the relevant family law legislation, on the notional circumstances that the parties separated or divorced just prior to the testator’s death.

 Given the legislative change in a common-law spouse’s entitlement to property and pension division upon separation, it will be interesting to see how it will affect the Court’s analysis of a testator’s legal obligations to a common-law spouse in a Wills Variation Act claim context.