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In certain circumstances, family law and estate litigation claims can intersect. The case of Malecek v. Leiren, 2021 BCSC 1052 is one such example.
In Malecek, the deceased, a man named Hall, died at the age of 79. He was survived by his wife of 37 years, Carol, and four daughters from a prior marriage. He was also survived by two step-sons, who were Carol’s children from a prior marriage. Until Hall’s health deteriorated resulting in him having to live in various care facilities, he and Carol had lived together in a house owned solely by Carol.
Hall had made a will that left his personal effects to Carol and divided the residue of his estate equally among his daughters. However, following his death, it became apparent that Hall’s estate was insolvent such that there was no money for his daughters to inherit.
Not being satisfied, Hall’s daughters alleged that he and Carol had, in fact, separated prior to his death. If that were the case, Hall’s estate would have prima facie been entitled to one-half of all family property including the house owned by Carol. Bringing that and, perhaps, other assets into Hall’s estate would make it possible for his daughters to inherit something. As such, the central issue in the case was whether Hall and Carol had separated prior to his death.
The daughters made many assertions that they said supported their position that Hall and Carol had separated before he died. Among others, they argued that Carol had been in a long-term relationship with another woman; that Carol rarely visited Hall while he was living in care facilities and that, when she did, she did not provide him with sufficient care; that Carol refused to let Hall come home; and that, before his death, Hall had expressed being lonely and wanting to move closer to his daughters.
Before arriving at her decision, the Court reviewed the principles applicable to determining whether spouses have separated, noting that:
a) The law does not require a meeting of the minds to find an intention to separate. All that is required is an intention of one spouse to separate and action consistent with that intention;
b) The law does not require an unequivocal communication of separation by one spouse to the other. The court is to assess on the totality of the evidence whether one spouse had a settled intention to separate and communicated that intention through conduct to the other spouse; and
c) The mere living separate and apart of spouses because of enforced long-term residential medical care is not conclusive of an intention to end the matrimonial relationship, nor of an intention to separate permanently.
In considering the evidence put forward by the daughters, the Court found that there was not a scintilla of actual evidence that Carol had been in a romantic relationship with another woman. The allegation, itself, was scandalous. The Court further determined that the amount of contact between Hall and Carol while the former was in care and the assistance which Carol provided was entirely sufficient and, in any event, not suggestive of any intention on either or their parts to separate. Given the severity of his medical issues, Hall’s residence in care facilities as opposed to Carol’s house was also entirely understandable. Finally, his expression of loneliness was understandable and, again, not suggestive of an intention to separate from Carol.
Overall, the Court found that the daughter’s had cherry-picked evidence and given an uncharitable interpretation to many other facts. The Court went on to find that the daughter’s had engaged in a long-term campaign to convince Hall to divorce Carol and that, contrary to their assertions, he had resisted those attempts. Furthermore, Carol was still alive to depose that she never separated or intended to separate from Hall, and that the two remained loving spouses up until his death.
In the circumstances, the Court had no problem concluding that Hall and Carol had not separated prior to the former’s death. Neither had communicated an intention to the other to separate permanently and neither of them took any action that might be construed as demonstrating an intent to separate permanently or to otherwise end the marital relationship. To the contrary, the evidence, direct and indirect, was overwhelming that they remained in a marital relationship up to the time of Hall’s death.
As the losing party, costs were awarded against the daughters in favour of Hall’s estate. Given the conduct and serious allegations made by the daughters, Hall’s estate sought an award of special costs. Where a losing party engages in reprehensible conduct, conduct from which the court seeks to dissociate itself, conduct deserving of reproof or rebuke, or conduct that is scandalous or outrageous, they can be liable for special costs.
In reasons indexed as Malacek v. Young, 2021 BCSC 2219, the Court found that special costs were warranted for several reasons. Among them, the Court found that the unfounded and scandalous allegation that Carol had been in a secret same-sex relationship with another woman was reprehensible. Connected with that, the Court admonished the daughters for having made threats to expose the alleged relationship between Carol and the other woman. The Court found that this constituted intimidation and bullying. The Court was also incensed that the daughters had virtually no evidence to suggest that the 37-year marriage between Hall and Carol had ever ended. Finally, the Court saw that the daughters’ true intent was to simply get their hands on Carol’s money.
