A desk order divorce is an uncontested divorce proceeding that enables spouses to obtain a divorce without a court hearing.  There are two ways to obtain a desk order divorce - through the sole application process and the joint application process.    I will just be discussing the steps in the sole process since it is the process most commonly used.

Generally, a desk order divorce will be available where a divorce proceeding is undefended or uncontested from the outset, and where a contested matter becomes an uncontested proceeding by the withdrawal of a defence or the discontinuance of a claim.

Here are the main steps in a sole desk order divorce process:

1.  Obtain your marriage certificate or registration of marriage.  If you do not have it, you can obtain it from the B.C. Vital Statistics Agency.

2.  File at a B.C. Supreme Court registry the original and 3 copies of the Notice of Family Claim.  You will need to include your original marriage certificate or a certified copy of your registration of marriage, a registration of divorce proceeding form (available at the court registry), and the filing fee (currently $210).

3.  Arrange to have a process server or someone other than yourself serve your ex-spouse with the Notice of Family Claim.  The process server will need 2 copies of the Notice of Family Claim and a photograph of your ex-spouse.  The process server will serve one copy on your ex-spouse and attach the other copy and the photograph to his or her Affidavit of Personal Service to prove your ex-spouse was served.  If your ex-spouse cannot be located, you will have to apply for an order for substituted service.

4.  Finalize the process server’s Affidavit of Personal Service and ensure that it has been sworn or affirmed before a lawyer or notary public.

5.  Wait at least 31 days from the date of service on your ex-spouse before preparing the divorce order application forms.  If your ex-spouse files a Response to Family Claim, your matter becomes contested and you will have to settle or litigate your family law issues.

6.  Prepare the divorce order application forms, which generally consist of the following:

  • Affidavit in support of the application (must be sworn/affirmed before a lawyer or notary public within 30 days of the date the application for the divorce is filed)
  • Certificate of the Registrar
  • Draft of the order(s) sought
  • Requisition for the order sought
  • Proof of service – Affidavit of Personal Service or Affidavit of Substituted Service
  • Child Support Affidavit (if applicable) setting out the parties incomes and child support arrangements (must be sworn/affirmed before a lawyer or notary public within 30 days of the date the application for the divorce is filed)

7.  File the divorce application forms and pay the court fee (currently $80) at the court registry where you filed your Notice of Family Claim.

8.  After 5 weeks, check with the court registry to see if the divorce order is ready for pick up.  Once you have received it, mail a copy to your ex-spouse.  It can take from 4 to 16 weeks to process the order depending on the court registry.

9.  You are officially divorced once you have received the entered divorce order and 31 days have passed.

10.  If you would like to obtain a Certificate of Divorce (required if you wish to remarry), you will have to wait 32 days from the date the divorce order was made before filing a draft Certificate of Divorce and Requisition.  You will have to pay a court fee (currently $40).  You can wait at the court registry while your Certificate of Divorce is completed.

When Should You Enter Into a Marriage or Cohabitation Agreement?

Marriage and cohabitation agreements, also known as prenuptial agreements, are generally prepared when spouses and common law partners wish to take themselves out of the rules set out in the B.C. Family Law Act.   The rules set out in the Family Law Act dictate an equal division of all real and personal property other than “excluded property”.  A couple may want to opt-out of this regime in situations where one party is bringing significant assets into the relationship, one or both parties have children from a previous relation, one party owns a business, or each party wants to remain financially independent.

There are many reasons why couples enter into marriage and cohabitation agreements.  One or both parties may want to protect assets acquired before the relationship began or preserve certain assets with sentimental value from being shared with the other party.  Other parties may want separate and joint assets during the relationship.  Couples may also want to address spousal support issues through an agreement in cases where both parties are well-established in their careers.  They may also wish to set out how each would contribute to the shared expenses and assets in situations where they choose to maintain separate financial affairs during their relationship.

Court will generally uphold agreements between parties and not set them aside provided that certain steps have been taken before and during the preparation of the agreement.  First, the parties must make full disclosure of their financial situation and assets.  Second, both parties must be free from duress or pressure to sign the agreement.  Third, the provisions in the agreement must not be significantly unfair to either party.  The final consideration is each party must have their own lawyer who can provide them with legal advice independent from each other.

Having an agreement in place at the beginning of a relationship can help reduce the expense, uncertainty, and stress involved with any family law problems that may occur in the future.


How to Calculate Probate Fees in British Columbia

There are currently no probate fees payable to the B.C. Supreme Court Registry for estates with a value of less than $25,000.  A formula is set out in the Supreme Court Civil Rules to determine the probate fees for estates with gross values over $25,000.  Probate fees in B.C., unlike some other provinces, are a percentage of the estate and can be relatively high.  The probate fee is the rate in effect when the grant of probate is issued.

Here is a summary of the formula for calculating probate fees:

  • Estate worth less than $25,000 - no fee
  • Estate worth over $25,000 - basic fee of $200
  • Estate worth between $25,000 and $50,000 - basic fee of $200 and $6 for every $1,000
  • Estate worth over $50,000 - $14 for every $1,000 of the estate value over $50,000

How do you determine the “value of the estate” for the purposes of calculating the probate fees?  Probate fees are payable on real and tangible personal property of the deceased located in B.C. and intangible personal property, wherever located, that passes to the personal representative (executor/administrator) at the date of death.  The difference is that probate fees are payable on real and tangible personal property in B.C. regardless of where the deceased resided.  Whereas, probate fees are only payable on intangible assets if the deceased was ordinarily resident in B.C.  Real and tangible personal property physically located outside of B.C. are not subject to probate fees.

Here are definitions and some examples of real, tangible and intangible personal property:

  • Real property: any estate or interest in land, buildings, improvements, and fixtures.   
  • Tangible personal property: movable property that has physical attributes and includes vehicles, boats, jewellery, furniture and coin collections.  
  • Intangible personal property: bank accounts, insurance policies, securities, interests in businesses, trusts, etc.

The B.C. Supreme Court Registry calculates the probate fee using the gross values of the estate assets deposed to in the affidavit of the personal representative submitted with the probate application.  For example, for an estate valued at $1,225,700, the total fees would be calculated as follows:

Basic Fee                                                      $200
Probate Fees            
($50,000 - $25,000) ÷ 1,000 x $6       =     $150
($1,226,000 - $50,000) ÷ 1,000 x $14=     $16,464

Total                                                               $16,814

There is also a shorter way to determine the total fees.  You round the value of the estate up to the next $1,000 as we did above ($1,225,700 to $1,226,000), multiply the result by 0.014 and subtract $350.

$1,226,000 x 0.014 - $350 = $16,814

Given the relatively high probate fees for large estates in B.C., it is important for an estate plan to be properly set up so as to reduce these fees as much as possible.

How Much Does an Executor Get Paid?

Most people know that an Executor's can charge a fee for administering the estate but few know how to determine the amount.  If the Will sets out a specific amount for the Executor's fee, that is the amount that he or she will receive.  The Will needs to be reviewed to determine the basis for the Executor's fees.  It may be expressed as a dollar amount or as a percentage of the estate and is generally greater than the cost of out-of-pocket expenses.

The Will may also state that an agreement was signed with a trust company.  In this case, the will-maker will have agreed on a fee schedule with the trust company at the time the Will was made.

If the Will is silent as to the Executor's fees and there is no other agreement on fees (which is the case with most Wills), the Trustee Act sets out the following rules:

  • 5% of the gross aggregate value of the capital of the estate (i.e., the realized value of the original assets without deduction of the value of any mortgages against assets and the value at the date of distribution of any assets distributed in their original form);
  • 5% of the income earned during the administration; and
  • annual care and management fee of 0.4% of the average market value of the assets.

If an Executor receives a legacy in the Will, it is presumed that this will take the place of Executor fees.  But, if the gift is a residual bequest (a gift of whatever is left after specific gifts are given), this presumption will not apply and the Executor is entitled to both the gift and fees.  The presumption also does not apply if the Will states that the Executor may take both the gift and fee.

The Executor will need to get the beneficiaries to approve the Executor's fees.  If the Executor is unable to get the beneficiaries to agree to the fee, he or she will have to apply to Court.  The Court generally will allow less than the maximum or 3% of the estate value as well as a care and management fee.  What the Court orders will depend on the size of the estate, the care and responsibility involved, the time occupied in the administration of the estate, the skill and ability displayed, and the success achieved in the final result.  The costs incurred in seeking court approval are payable from the estate.

In this regard, it's best to include a clause in your Will stating the Executor's fee so it will not lead to confusion or litigation down the road.


After you have found your new home and arranged financing, you will need to hire a Lawyer or Notary to assist you with the legal procedure for completing your purchase.  In British Columbia, the Buyer’s Lawyer or Notary does most of the work, including preparing the documents to transfer the property and paying the real estate commissions owing on behalf of the Seller.

We have broken down the legal procedure into the following 8 steps:

1.  Contact a Lawyer or Notary to discuss the terms of your Contract of Purchase and Sale. 

Once there is a Contract of Purchase and Sale and all subjects have been removed and there is a Mortgage commitment where all conditions have been met (if applicable), the Realtor sends the Contract and the Lender sends Mortgage instructions to our office.

We review the Contract of Purchase and Sale to ensure that it represents your intentions and expectations, and that it is in proper form.  We also advise on all aspects of the transaction, procedure and timing for completing the transfer.   

At this stage, you will also need to decide how you want to hold the property if you are purchasing it with others.  You can hold it as “joint tenants” where each jointly owns 100% of the property and on the death of one of the owners, the property automatically passes to the other(s).  Alternately, you can hold the property as “tenants in common” where each owner owns a fixed percentage and on the death of one of the owners, the owner’s interest passes to his or her estate.

We will then send you a written confirmation of our instructions to act on your behalf.

2.      The Lawyer or Notary will search the Title, review the Charges that will remain on title, obtain municipal tax information, and gather any other information required. Here is a list of the searches that are undertaken:

  • We compare the information in the Contract of Purchase and Sale with the information on the Title to ensure that the Seller is the registered owner of the property and that the property’s legal description on title is the same as the one in the Contract. 
  • We review the charges on the property – such as, mortgages, any caveats, judgements, liens – that will need to be discharged by the Seller before closing.
  • We also go through any statutory rights of way and easements that may impair the client’s use of the property, such as plans to build a garage or swimming pool.
  • We contact the city or municipality to confirm that all taxes are paid up to date.  Responsibility for paying real property taxes follows the property, rather than the owner so it is important to ensure that the Seller has paid them. 
  • For strata properties (generally condos and townhomes), we contact the strata company or council to confirm that strata fees are paid up to date and review any special assessments outstanding.  We obtain a Form F Certificate of Payment and a Form B Information Certificate.
  • We order a Survey Certificate or Title Insurance if required by the Lender and instructed by the client.
  • We also confirm that there is insurance in place on the property.  Insurance should always be in place in the name of the Purchaser before the Seller is paid the sale proceeds. 

3.      The Lawyer or Notary prepares the closing documents including the Form A Freehold Transfer, Form B Mortgage and other mortgage documents (if applicable), Buyer’s Statement of Adjustments, Property Transfer Tax Form, Seller’s Statement of Adjustments, and other conveyancing documents that apply to the transaction. 

Your Lawyer or Notary forwards the Form A Freehold Transfer, Seller's Statement of Adjustments and other Seller conveyancing documents to the Seller's Lawyer for execution by the Seller and return to the Buyer's Lawyer.

4.      Signing Day. Your Lawyer or Notary will arrange a meeting with you one to three days before closing to sign the documents and deliver the balance of the down payment.  We email drafts of these documents to our clients prior to meeting with them. 

5.      We review the signed Seller’s documents and perform a pre-registration search to ensure there have been no new charges registered against the property since the last search.  

6.      Closing Day.  We register the transfer, the property transfer tax form, and mortgage documents.    A post-registration search is performed to confirm that there have been no other applications registered in the Land Title Office against the property. Once we have received confirmation, we advise the Buyer, Seller’s Lawyer, and Realtors that the transfer is complete.  We arrange for the Seller’s Lawyer to pick up the funds and deliver them on an undertaking that they will be used to pay any existing mortgages, outstanding taxes and any other applicable charges. 

7.      You will receive the keys from your realtor on the possession date and can move in on that date.

8.      We send a final reporting letter with copies of all the registered documents to our client and any lenders.

There are also post completion steps where the seller is discharging a mortgage or charge on the property.  The Seller’s Lawyer sends the Buyer’s Lawyer proof and confirmation that they have paid out the existing charges and then delivers the balance of the funds to the Seller.   The Buyer’s Lawyer will order a State of Title Certificate – a document signed by the Registrar of the Land Title Office that certifies that the property is owned by the new Buyer – and deliver a copy to the Buyer (now registered owner) and send the original to the Lender.



Here is a summary of the top 20 duties of an Executor and Administrator (once appointed by the Court).  I thought it would be useful as a checklist for a Personal Representative (Executor or Administrator).  Note that not all of these duties will apply to every estate.

1. Make Funeral Arrangements

The Executor has primary authority to make the funeral arrangements and dispose of the deceased’s remains.  However, in practice, a family generally makes these arrangements together.

2. Identify Beneficiaries and Next of Kin and Notify Them of Their Interests in the Estate

You must obtain a complete list of the names, addresses, and ages (to identify minors) of the deceased’s spouse, children, and beneficiaries named in the Will.  The deceased’s spouse includes common law spouses together for more than two years immediately before death.

You must also give all beneficiaries of the estate a copy of the Will.

3. Prepare an Inventory and Manage the Assets of the Deceased

The Executor will need to conduct a physical search for cash, securities, jewellery, important documents, and other valuables and arrange for their safekeeping.   He or she cannot make personal use of estate assets unless it is impractical (i.e., spouses who shared a vehicle).

You will also need to prepare a complete inventory of the estate assets.  Estate assets include personal effects, furnishings, artwork, jewellery, bank accounts, securities, bonds, and real estate that are in the name of the deceased.  They do not include assets held in joint names or assets with a named beneficiary other than the estate.

The Executor will need to give all assets a value as at the date of death.  These values will later be used to calculate the probate fees that apply to estate.

4. Search any Safety Deposit Boxes and Make a List of the Contents

The bank will not allow an Executor to remove the contents until a grant of probate is obtained.

5. Secure the Deceased’s Home and Arrange for the Protection of Vacant Land and Buildings

You will need to advise the apartment manager or police, change locks, and obtain a vacancy permit, if applicable.  

6. Notify Insurers, CPP, Old Age Security, Utility and Telephone Companies, ICBC, Passport Canada, CRA and Canada Post

Check for expiry dates on insurance policies and ensure there is adequate insurance for property, vehicles, and valuables. 

Canada Post requires a notarially certified copy of the death certificate, a statutory declaration and an application form provided by them.

7. Notify Deceased’s Banks and Financial Institutions

You should cancel the deceased's credit cards.  Banks or financial institutions may release money for funeral and probate fee expenses prior to the grant of probate.  You can discuss this with the bank at this time.

The Executor may be able to open an estate bank account for limited purposes.  However, some banks will not open one until a grant of probate is obtained.  An Executor may want to consider an application for an Authorization to Obtain Estate Information under the Supreme Court Civil Rules.

8. Arrange to Pay Ongoing Debts and Expenses of the Deceased and Owed By the Estate

You can either make arrangements to pay for mortgages, leases or other contracts or take steps to postpone payments until the estate can raise sufficient funds.

9. Advise Joint Tenants of Deceased's Death

If there is jointly owned property, advise the other joint tenant of the deceased's death.  The surviving joint tenant can take care of transferring the title.

10. Notify Designated Beneficiaries of Deceased's Death

If there are any life insurance policies, RRSPs, RRIPs or any other assets that name a beneficiary other than the estate, notify that beneficiary of the deceased's death.

11. Arrange to Collect any Rent, Loans, and Other Payments Owed to the Estate

12. Apply for Canada Pension Plan Death Benefits, Life Insurance, Employment Pensions, and Any Other Benefit Payable to Deceased’s Estate.

An application for death benefits can be obtained from the CPP website.  You must be aware of the time limitations for taking this step.

13. Arrange Interim Management of Business Assets

14.  Continue Lawsuits on Behalf of the Estate

If there is a lawsuit against the estate, you should hire a lawyer and continue the lawsuit on behalf of the estate.

15. Apply for a Grant of Probate or Administration

16. Keep Financial Records

The Executor has a duty to keep records and be ready to account to beneficiaries and creditors of the estate.  The records must particularize estate income and expenses that have been incurred. 

The Executor is entitled to reimbursement from estate for all reasonable expenses incurred in managing the estate.  He or she needs to keep good records in case the expense is later challenged by beneficiaries.

17. Advertise for Creditors and Claimants of the Estate

You may publish a notice once in the Gazette requesting claimants against a deceased's estate to present their claim within a specified period (not less than 30 days from publication).

18. Prepare and File the Income Tax Return of the Deceased.

The Executor must pay the taxes before paying the beneficiaries.  He or she will need to obtain a Canada Revenue Agency Tax Clearance Certificate.

19. Set Up and Administer Any Trusts Under the Will

20. Distribute the Deceased’s Property In Accordance With the Will or With Intestacy Rules

Whether to act as an Executor or Administrator is an important decision.   This should give you a general idea of the duties involved in taking on this role.


B.C. Budget's Changes to Real Estate Transactions in 2016

1.      A property transfer tax exemption for Canadian citizens and permanent residents who purchase newly-built homes, condos, or townhomes valued under $750,000.  This is effective April 1, 2016 and translates into a potential savings in closing costs of up to $13,000.  The property transfer tax is a British Columbia tax on the sale or transfer of ownership of any residential real estate property in B.C.

2.       The First Time Home Buyers’ Exemption will continue for homes under $475,000.

3.       For purchasers of existing or resale properties who do not qualify for the First Time Home Buyers’ Exemption, property transfer tax will continue to apply at 1% on the first $200,000 of value and 2% on the value between $200,000 and $2,000,000.

4.       Property transfer tax for properties over $2,000,000 will be 3% on the amount over $2,000,000.  This is a 1% increase in the property transfer tax for homes over $2,000,000.

5.       Purchasers will be required to disclose their citizenship and country of residence in all property transactions beginning in the summer of 2016.

6.       The beneficial ownership of properties held by corporations will also be tracked.


1.       You decide who will receive your property and assets, otherwise legislative provisions will apply.

2.       You choose who will be your Executor and administer your estate.

3.       You indicate your funeral and disposition wishes.

4.       If you have children who are minors (under 19), you decide who will look after them and ensure they receive their inheritance in the way and at the time that you feel is appropriate.

5.       You help alleviate any stress and angst that family and friends, who have suffered your loss, may be experiencing and possibly reduce taxes that would have to be paid as a result of your death.

A Will sets out the persons who will assume control of your estate on death and the manner and scheme of distributions and gifts that you wish to make.  If it is properly drafted, it will ensure that your beneficiaries receive their distributions while minimizing potential costs to the estate.

We also recommend that you change your Will if there is a significant change in your life, such as a birth, death, divorce or new marriage.