The Messy Intersection of Incapacity and Separation

The love lives of B.C.’s growing elderly population are raising some interesting and novel legal questions.

I’ve written before about Canada’s grey divorce boom and the series of demographic trends that are combining to boost the number of partnerships between older people, often involving parties recoupling after having raised their own sets of grown-up children and grandchildren.

But what happens when an elderly couple who found love later in life become estranged due to one spouse’s incapacity?

That’s a question that can arise when a client is appointed under a power of attorney to manage the affairs of a parent who was forced to move into a care home for seniors as a result of their ill health.

Both spouses were on their second marriage and had spent many happy years together in retirement, but the likelihood of any reconciliation now seems remote, prompting my client to explore a division of family property under B.C.’s Family Law Act. However, the parties have been left in limbo without a separation — the triggering event for such an order.

The very limited caselaw available on the topic offers some guidance to family lawyers and their clients on how a court may view separation from an incapacitated spouse.

For example, court decisions suggest that a substitute decision-maker may be able to take steps regarding divorce and family law proceedings when they can demonstrate that the currently incapable person had demonstrated an intention to separate before losing capacity. In that way, it could be said that the guardian is simply continuing on the trajectory set by the person who appointed them.

When evidence is lacking regarding the incapable person’s previous intention to separate, things get more complicated. However, courts still seem willing to entertain applications on their behalf, where they would be in the incapable person’s best interests. For example, in cases where they were abused — either physically or financially — by their spouse.

Another possible option for substitute decision-makers lies in the province’s Partition of Property Act, which allows any party with an interest in a property to bring an application for the partition or sale of it. However, that still leaves the question of how the proceeds of any sale should be divided between.    

Statistics Canada data shows that British Columbians are living longer than ever, with senior citizens accounting for more than one-fifth of our population. And the unique nature of B.C.’s laws around common-law partnerships adds another layer of complexity.

Unlike the law in some other provinces, B.C.’s Wills, Estates and Succession Act and Family Law Act make little practical distinction between married spouses and common-law ones, which means that parties need only have spent two years in a “marriage-like” relationship to be considered spouses under either piece of legislation.

Without a fixed definition of the term, disputes abound in B.C. courts about which relationships are “marriage-like,” focused on factors such as the level of commitment between the parties, their financial reliance on one another, whether they live together and how they present themselves to friends and family.

If you have questions about your rights and options in these complex situations, please contact one of our family law lawyers. We would be happy to help you.

*This post is not intended to be legal advice and should not be taken as such. Please contact McConnan Bion O’Connor & Peterson if you have any questions regarding this post or require assistance or legal advice regarding child support or another family law matter.