In the first case dealing with a unique provision of estate law in British Columbia, a court has ordered that a common law spouse be given ownership of the family home that he couldn’t afford to buy — with the children that stood to inherit the house receiving an enforceable interest in the property.
The Supreme Court of B.C. granted an application from a man, Ralph Amies, giving him ownership of the house that he shared with his common-law spouse, Kathryn Anne Boisvert, who died without a will in 2022.
According to the court’s decision, Amies made an application under a provision of estate law that exists in B.C., but not in any other province or territory, seeking an order making him the owner of the house where they lived. Boisvert’s daughter from a previous relationship, who was the administrator of her estate, opposed the application.
“As far as I can tell, [the provision] is unique to British Columbia,” the court said. “In Alberta and Ontario, there is no right of the surviving spouse to have an interest in the spousal home. Whereas, in some of the Maritime provinces, the surviving spouse can elect to receive the spousal home in lieu of their preferential share of the intestate estate.”
The only similar case that could be found occurred in Australia, the court noted — adding that the provision hasn’t previously been tested in court in B.C.
Before this provision was introduced (it received royal assent in 2009), a surviving spouse had the right to have a “life estate in the spousal home,” meaning that the children would have to wait for the death of the surviving spouse before they could inherit the home.
The new scheme was adopted to better balance the interests of the spouse and the children — giving the courts more flexibility to craft a resolution to complex estate issues, rather than just automatically granting a life estate to a surviving spouse — and to clarify the value of the parties’ interests in the house, the court said.
Under the new provision, the surviving spouse can use their equity in the home, and benefits from any increase in market value. Under the life estate option, the treatment of gains isn’t as clear, although the court said that, generally, the children would get the benefit of the market gains.
The new approach also gives the children clear entitlement to a specific portion of the home’s value, which they can sell, potentially creating a more marketable asset.
In this case, the couple lived together for more than 25 years in a house owned by Boisvert, which was essentially the only asset of her estate. She didn’t leave a will, and the couple didn’t have any children of their own, although she had two kids from a previous relationship. The house had an estimated market value of $600,000 and no mortgage, but Amies had little prospect of being able to buy the home, given his modest income (about $20,000 per year) and limited retirement savings.
In this case, the court concluded that, “Amies clearly meets many of the criteria that [the provision] requires.”
Among other things, it noted that he would face “significant financial hardship” to buy the home outright — he doesn’t have the assets on hand, and it’s unlikely that a bank would lend him the money to do it, the court said.
It also found that, while the children will be prejudiced by an order allowing him to remain in the home, the negative impact on them wouldn’t be as great as the impact on Mr. Amies, if he was forced out of the house.
The court also noted that Amies was a supportive spouse when his spouse struggled with health and financial difficulties, whereas the children generally didn’t help support her, or help maintain the home. “When their mother was struggling with poor health and tenuous finances, Mr. Amies shouldered the load without their help,” it said.
Ultimately, the court ordered that the estate’s interest in the home is to be transferred to Amies, and that the children will jointly hold a registrable charge of $225,000 over the house, which is payable under requirements set out in the legislation.
