The case of Bradford Estate v Kingdon is one that both clients and family lawyers alike should be actively aware of, especially as it relates to a client’s claim for equalization. Being unaware of its implications can result in an individual, and their subsequent estate, being barred from pursuing their claim for an equalization payment. If you are beginning to think about your estate, or are dealing with any serious health issues, the case below will provide some critical considerations to be aware of.
The Applicant was the Estate of the Late Douglas Bradford, and the Respondent was Mr. Bradford’s surviving spouse, Ms. Ann Beverly Kingdon. Mr. Bradford and Ms. Kingdon were married on June 27, 2015 and separated with no reasonable prospect of reconciliation on August 14, 2018. The couple purchased the matrimonial home in joint tenancy.
On May 7, 2020, Mr. Bradford passed away due to a complication from diabetes causing kidney failure.
The Applicant stated that Mr. Bradford gave instructions to his counsel to commence a family law application for equalization prior to his death. However, no evidence was provided showing any substantive steps were taken towards drafting said Application, let alone serving and filing it with the court.
On March 15, 2020, the Superior Court of Justice issued a notice stating that due to the COVID-19 pandemic, regular operations were suspended, however, courthouses remained open for filing of materials. As the matrimonial home was held in joint tenancy between the couple, upon Mr. Bradford’s death, his interest was transferred to Ms. Kingdon in its entirety.
Mr. Bradford’s Estate then commenced an Application for the equalization of net family property in October 2020. Ms. Kingdon moved to have the Application summarily dismissed.
Justice Labrosse was both succinct and definitive in ruling that the Applicant Estate was prohibited from bringing an equalization claim on behalf of Mr. Bradford. His Honour highlighted the intersection between sections 5 and 7 of the Family Law Act (‘FLA’), whereby the entitlement to an equalization claim was a personal right between spouses and could not be initiated by a trustee on behalf of a spouse.
While section 7 of the FLA allows for a deceased spouse’s estate to continue a claim for equalization that was commenced prior to the spouse’s death, it does not allow for the estate to commence such an application. The FLA further preserves the surviving spouse’s right to commence an equalization claim against the deceased’s spouse estate, where they would be entitled to an equalization payment.
In other words, while the surviving spouse would still be allowed to bring an equalization claim against their former spouse’s estate if they are entitled to an equalization payment, the estate does not have
this same right if the deceased spouse was the one who was owed an equalization payment. If Mr. Bradford had commenced his application for equalization prior to his death, the claim could be continued following his passing. The right was personal to Mr. Bradford and could not be exercised by his estate. This was elaborated on in the Court of Appeal decision of Rondberg Estate v. Rondberg Estate, 1989 62 D.L.R. (4th) 379, where the court echoed Justice Reid’s opinion that he “could think of few things more personal than the consideration by a surviving spouse whether to respect or to override the wishes of the deceased”. The ability to enforce a decision of the deceased is one thing, but to make the decision itself, is another.
Justice Labrosse did not find that the COVID-19 pandemic had any impact on Mr. Bradford’s ability to commence an application, as the filing office remained open during that period, and Mr. Bradford still produced other materials in that time frame.
Potential family law litigants should be extremely wary of the case of Bradford Estate v Kingdon, especially if they are in declining health or are cognizant of their entitlements flowing to their estate. Should they be entitled to a potential equalization payment from their former spouse, such a claim must be commenced before their death. Failing to take steps to initiate their claim can be fatal to any future entitlement by their estate, and as a result, their dependents. While the court did leave open the option of making an unjust enrichment claim, success on such a claim is anything but guaranteed.