Scott v. Scott

2026 BCSC 445 Scott v. Scott IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Scott v. Scott, 2026 BCSC 445 Date: 20260316 Docket:E26755 Registry: Fort St. John Between: Patricia Scott, the Administrator of the Estate of David Guthrie Scott, Deceased, and Patricia Scott Petitioner And: Lynne Karen Scott Respondent Before: The Honourable Justice Young Reasons for Judgment Counsel for Petitioner: M. Katerberg Counsel for Respondent: D. E. Oliver Place and Date of Hearing: Fort St. John, B.C. January 29, 2026 and March 9 2026 Place and Date of Judgment: Fort St. John, B.C. March 16, 2026 Table of Contents Overview.. 3 Relevant Facts. 3 Discussion.. 10 Limitation Acts. 10 Apportioning Arrears of Maintenance. 10 Confirmation of the Debt 12 Costs. 15 Overview [1] The administrator of the estate of David Guthrie Scott petitions the court to determine how much if anything the estate owes in arrears of maintenance pursuant to the order of the Hon. Justice Lamperson pronounced July 15, 1983. The deceased had five children, the last of whom reached the age of majority in 1995. Pursuant to the Limitation Act, R.S.B.C. 1996, c. 266, the order for child support for the deceased's youngest child expired in 2005 unless that judgment was confirmed by correspondence sent by the deceased's counsel in 2003 seeking to arrange a release of liens registered against the deceased's property. If the debt was confirmed by this correspondence, then the unexpired limitation period would have recommenced in 2003 and continued until 2013 and the debt for child support for the youngest child would be protected by the exemption of arrears in spousal or child support contained in s. 3(1)(l) of the Limitation Act, S.B.C. 2012, c. 13. [2] I find that the right to pursue the debt that had not already expired was confirmed by the 2003 correspondence and that the portion of the debt attributable to the youngest child was protected by the exemption in the 2012 Limitation Act. Relevant Facts [3] The petitioner Patricia Scott is the widow and administrator of the estate of David Guthrie Scott who died October 31, 2018. [4] The respondent is a former spouse of Mr. Scott. They married in 1971 and separated on September 16, 1979. [5] The deceased and the respondent had five children, namely: a) Kim, born November 19, 1968; b. Kerilyn born September 16, 1971; c. Kelly, born December 17, 1972; d. Kristyn, born April 26, 1974; and e. Kaurie born March 6, 1976. [6] The deceased was ordered to pay child support and spousal support and frequently fell into arrears. Although not complete, the petition record does contain the following court orders or references to the following court orders in preambles to subsequent orders: a) On January 7, 1980, his honour Judge Shupe ordered Mr. Scott to pay $75 per month for the maintenance and support of the applicant Lynne Scott and $75 per month for each child of the marriage; b) On December 8, 1980, his honour Judge Gordon ordered that arrears of maintenance owing under the order of Judge Shupe be confirmed in the amount of $2,000 and be paid in full by Mr. Scott no later than June 30, 1981; c) On October 5, 1981, his honour Judge Thomas confirmed arrears of maintenance owing under the order of Judge Shupe in the amount of $3,375 and ordered that Mr. Scott pay the arrears at the rate of $200 per month; d) On March 8, 1982, the respondent was called to court to show cause why he had not complied with the order of Judge Shupe dated January 7, 1980. Judge Thomas confirmed arrears of maintenance owing under the order of Judge Shupe to be $2,250; e) On May 18, 1982, his honour Judge Gordon ordered that Mr. Scott pay $75 and arrears by June 15, 1982 and if he defaulted that he serve three days in jail. He further ordered that the payments under the original order be reduced from $450 per month to $6 for the month of May 1982 and then recommence at $450 per month the following month; f) On July 15, 1983, the Hon. Justice Lamperson ordered Mr. Scott to pay to Lynne Scott maintenance for the children of the marriage in the amount of $100 per month commencing June 1, 1983 and continuing on the first day of each and every month thereafter. Judge Lamperson fixed arrears of maintenance in the amount of $6,000 on June 1, 1983. This is the final support order and the one that is in issue in this decision; g) On April 30, 1984, Judge Shupe ordered that Mr. Scott was to pay the arrears of $6,000 by commencing payment in the amount of $50 per month commencing June 1, 1984. If he failed to make three payments by August 1, 1984 Mr. Scott was to spend seven days in jail. [7] The petitioner who is the third wife of the deceased deposes that the deceased never spent any time in jail but she does not indicate how she knows this. [8] The respondent explains that the deceased was originally ordered to pay $450 per month for the support of the children and herself. As a result of his failure to pay, she had to rely on social assistance to support herself and the children. Once she was collecting social assistance, the maintenance was reduced to $100 per month as this was the most she could receive without a portion of the social assistance payment being clawed back. She could not afford to lose any of the social assistance given the deceased's ongoing failure to pay maintenance. [9] On December 22, 1986, Mr. Scott and his second spouse Molly Madeleine O'Neil purchased a house in Fort St. John and registered the title in joint tenancy (the "Fort St. John Property"). [10] Molly Madeleine O'Neil passed away April 6, 2014. [11] The deceased and the petitioner Patricia Scott began living together in a marriage-like relationship in 2015 and married on May 24, 2016. The deceased and the petitioner purchased a house in Hudson Hope which was registered solely in the deceased's name (the "Hudson Hope Property"). [12] On February 20, 1992, the respondent registered two judgments (PF 5374 and PF 5375) against the half interest of the deceased in the Fort St. John Property by way of a Family Maintenance Enforcement Agency non-expiring judgment. [13] On March 15, 2019, the respondents registered two judgments (CA 7398431 and CA 7398432) against the Hudson Hope Property. [14] On September 5, 2019, title to both properties was transferred into the estate of the deceased. [15] The petitioner says that at no time before the expiration of limitation periods applicable to the order of the Hon. Judge Lamperson or the order of Hon. Judge Shupe did the respondent take enforcement action with respect to those orders other than to register judgments against title. [16] The respondent deposes that the deceased did not pay the child support arrears in the amount of $6000 and frequently missed paying the current monthly amount of $100 per month from the date of the order. There is no reliable evidence from the petitioner that the deceased did make payments. [17] In 2003 counsel for the deceased Brian Daley, Q.C. (now Judge Daley) communicated with the respondent attempting to arrange release of the liens against the two properties. In a letter dated October 23, 2003, Mr. Daley references an offer made by the deceased to pay the respondent $6000 in satisfaction of the orders registered against his property. It is apparent from the tone of the letter that the respondent did not respond to any efforts to communicate with Mr. Daley until November 7, 2003. It is apparent from Mr. Daley's letter of November 17, 2023, that the respondent did not agree to a $6000 settlement. [18] The respondent rejected the offer to settle her claim for $6000 because that amount did not take into account the ongoing child support arrears that had accrued since the order of July 15, 1983. [19] In 2023, the petitioner was in the process of selling the properties and asked to remove the judgment on title to allow the completion of sale. The conveyancing solicitor, Tyler Holte, proposed that the funds be held in trust until there was a proper accounting of the arrears of support. [20] The respondent agreed to release the judgment from the properties in exchange for undertakings made by Tyler Holte including that the net proceeds of sale will be held in trust until the outstanding child support arrears were paid to her or further court order. [21] On April 26, 2023, the Hudson Hope Property was sold to a third party and the sales proceeds of $14,971.86 were paid in trust pending the resolution of the maintenance orders against title. [22] On July 28, 2023, the Fort St. John Property was sold to a third party and the sale proceeds of $287,058.82 were paid into trust pending resolution of the maintenance orders registered against title. [23] The respondent raises a new issue in her affidavit. She deposes that their eldest daughter Kim was in a car accident on September 16, 1988, and sustained a brain injury and as a result she has become permanently disabled. There is no evidence that the respondent applied for child support to continue for Kim or that Kim was unable to withdraw from parental support because of her permanent disability status. Accordingly, this is not an issue that I need to address further. [24] The next correspondence the respondent received was a letter dated October 8, 2024 from the petitioner's current counsel taking the position that the respondent had no interest in the funds because of the expiry of the limitation period. [25] The petitioner's initial position was that that the child support arrears for all five children expired prior to the coming into force of the 2012 Limitation Act which was June 1, 2013. The expiration dates are set out below: a) Kim turned 19 on November 19, 1987, and the right to bring an action to collect her portion of the child support arrears expired on November 19, 1997; b) Kerilyn turned 19 on September 16, 1990, and the right to bring an action to collect her portion of the child support arrears expired on September 16, 2000; c) Kelly turned 19 on December 17, 1991, and the right to bring an action to collect her portion of the child support arrears expired on December 17, 2001; d) Kristyn turned 19 on April 26, 1993, and the right to bring an action to collect her portion of the child support arrears expired on April 26, 2003; e) Kaurie turned 19 on March 6, 1995, and the right to bring an action to collect her portion of the child support arrears would have expired on March 6, 2005 if it had not been confirmed. [26] The petitioner concedes that the 2003 letters by Mr. Daley may constitute confirmation of the debt owing for support of the youngest child Kaurie but that the confirmation could not resurrect the debts owed for support of the oldest four children because the limitation period had expired. The petitioner says that one sixth of the fixed arrears should be allocated to the support for Kaurie and that one fifth of the $100 a month support should be allocated to the ongoing support of Kaurie. She has provided calculations for four different scenarios showing the minimum and maximum amounts that could be owing on the 1983 order. [27] The respondent's position is that the Daley letters confirmed the cause of action pursuant to s. 5 of the 1996 Limitation Act. Section 5 applies if the limitation time has begun to run but the limitation period has not yet expired. The respondent agrees that the limitation periods had expired for the maintenance for the first four children. The respondent however disagrees with apportioning one sixth of the $6000 arrears to Kaurie or one fifth of the monthly support and says that the full amount remained due at the date of confirmation and was confirmed by the Daley letters. The respondent also says that the full amount of $100 per month should be attributable to the support of Kaurie until her 19th birthday. [28] The respondent relies on the principles of child support set out in Colucci v. Colucci, [2021] 2 SCR 3 and Michel v Graydon, [2020] 2 SCR 763. She emphasizes the gross unfairness to the respondent who was forced to raise five children on her own with minimal unreliable support. When the payor parent fails to pay the appropriate amount of child support the recipient parent is left to shoulder the burden: Michel at para. 31. She takes the position that any apportionment of the arrears or the monthly amount is tantamount to a retroactive variation of child support which would be unfair to the respondent. [29] The respondent submits that unmet child support obligations are valid debt that must be paid similar to any other financial obligation regardless of whether the quantum is significant: Michel at para. 78 [30] The respondent submits that any discretion should be exercised in favour of the respondent who is the aggrieved party who had to shoulder the burden of raising five children almost exclusively on her own. [31] The respondent submits that the court should take a strict approach to any rescission or suspension of child support or child support arrears: [137] This strict approach to rescission and suspension of arrears based on current inability to pay is justified. The interests of the recipient and child in certainty and predictability are paramount, as the payor has failed to comply with a court order or agreement without any "excuse for non-payment of support when it came due" (Templeton, at para. 47). The child's interest in a fair standard of support is subverted when the payor directs support elsewhere; in such circumstances, "the child effectively subsidizes the payor's improved standard of living" (Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 69 O.R. (3d) 577 (C.A.), at para. 25, with additional reasons (2004), 2004 CanLII 24259 (ON CA), 6 R.F.L. (6th) 432). The payor parent, on the other hand, "cannot argue that the amounts claimed disrupt his/her interest in certainty and predictability" (D.B.S., at para. 98). Colucci at para. 137. [32] There is a recognized presumption against rescinding arrears. This presumption ensures rescission is a last resort available only where suspension or other creative payment options are inadequate to address the prejudice to the payor: Colucci at para. 138. Discussion Limitation Acts [33] The 2012 Limitation Act which came into force June 1, 2013 exempted the claim for arrears of child support or spousal support payable under judgment or an agreement filed with the court from the Limitation Act. Under the 1996 Limitation Act there was no such exemption and arrears of child or spousal support were treated as local judgments for the payment of money. [34] Pursuant to s. 3(3)(f) of the 1996 Limitation Act, the limitation period was 10 years after the date on which the right to bring an action arose. The running of time with respect to the limitation period set by the 1996 Limitation Act was postponed for persons under disability so long as the person was under disability. A minor child was considered a person under a disability: 1996 Limitation Act, s. 7. [35] Prior to the proclamation of the 2012 Limitation Act, there was no dispute that limitation acts applied to maintenance arrears: Chatman v. Chatman, 2014 BCSC 430 at paras. 6 - 7, citing Burbank v. Garbutt, 2012 BCSC 190 at para. 13. The governing period for the purpose of periodic maintenance payments at that time was 10 years. As a child is a person "under a disability", the running of time commenced on the child's 19th birthday. Apportioning Arrears of Maintenance [36] The lump sum of $6,000 maintenance arrears was established when the deceased was under court order to pay support for the respondent and the five children. I find it reasonable to apportion $1000 to each of them from this lump sum. [37] The respondent's right to bring an action to collect her portion of the arrears would have been statute barred 10 years after the order. [38] I do not see the exercise of apportioning the lump sum arrears between the respondent and the five children to be a retroactive variation of an order. It is my interpretation of what the order meant. I see no reasonable rationale for attributing the full $6,000 lump sum arrears to Kaurie. [39] I do however see a rationale for attributing the full $100 of monthly support to Kaurie once the other children had reached the age of majority. This amount of support is so woefully inadequate to support the children but reflects the practice in the 1980s and 1990s to only order that portion of support that the recipient could retain without receiving a reduction of social assistance. These reduced orders kept women and children in poverty. Fortunately, there have been several policy changes since the late 1990s to improve their situation and to pursue full child and spousal support orders. The Ministry of Social Services and Housing provided legal counsel to apply on behalf of recipients for full child and spousal support orders in the 1990s and 2000s to assist them in getting off social assistance. The Federal Child Support Guidelines came into effect in 1997 setting mandatory income-based child support amounts. I do not know why the respondent did not avail herself of these initiatives and seek more appropriate support orders. [40] It seems fair to me that as each child reached the age of majority, their portion of the paltry $100 monthly support payment should have been left for the remaining children. Until Kim turned 19 on November 19, 1987, each child would be entitled to receive $20 a month in child support. After Kim's 19th birthday the remaining children's portion of support was $25 per month until Kerilyn turned 19 on September 16, 1990. After Karilyn's 19th birthday the remaining three children would have been entitled to $33.33 per month until Kelly's 19th birthday on December 17, 1991. After that, Kristyn and Kaurie should have been entitled to receive $50 per month until Kristyn turned 19 on April 26, 1993. On Kristyn's 19th birthday Kaurie should have been entitled to receive the full $100 per month until her 19th birthday on March 6, 1995. [41] I agree that the right to collect maintenance for the oldest four children expired before any letter of confirmation was sent by counsel for the deceased. The right to collect Kim's portion of the child support arrears expired on November 19, 1997. The right to collect Kerilyn's portion of the child support arrears expired on September 16, 2000. The right to collect Kelly's portion of the child support arrears expired on December 17, 2001. The right to collect Kristyn's portion of the child support arrears expired on April 26, 2003; [42] If there had been no confirmation of the debt, the right to collect Kaurie's portion of the child support arrears would have expired on March 6, 2005. Confirmation of the Debt [43] The 1996 Limitation Act was in force when the letters from Mr. Daley were sent. Section 5 says: 5 (1) If, after time has begun to run with respect to a limitation period set by this Act, but before the expiration of the limitation period, a person against whom an action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for the action by a person having the benefit of the confirmation against a person bound by the confirmation. (2) For the purposes of this section, (a) a person confirms a cause of action only if the person (i) acknowledges a cause of action, right or title of another, or (ii) makes a payment in respect of a cause of action, right or title of another, (b) an acknowledgment of a judgment or debt has effect (i) whether or not a promise to pay can be implied from it, and (ii) whether or not it is accompanied by a refusal to pay, (c) a confirmation of a cause of action to recover interest on principal money operates also as a confirmation of a cause of action to recover the principal money, and (d) a confirmation of a cause of action to recover income falling due at any time operates also as a confirmation of a cause of action to recover income falling due at a later time on the same account. [44] In October 2003, Mr. Daley wrote to the respondent confirming that he had made an offer on behalf of Mr. Scott to pay $6000 in satisfaction of the maintenance orders which were registered against Mr. Scott's property. He referenced several previous letters that had gone unanswered. This was a with prejudice offer which he intended to rely on in the event that it was necessary to go to court and speak to costs. [45] The governing test for determining whether a written communication has confirmed a cause of action is described by the BC Court of Appeal in Trombley v Pannu, 2016 BCCA 324 at page 10, citing Ryan v Moore, 2005 SCC 38: 28 Ryan provides the governing test for determining whether a written communication has confirmed a cause of action. Adopting the language of "acknowledgement of some liability" in Podovinikoff, Ryan sets out the central question in each case is whether, objectively construed, the party who made the communication intended to admit some liability. See also Freeway Properties Inc. v.Genco Resources Ltd., 2012 BCCA 258 at paras. 23-24. [45] Thus, a party can only be held to have acknowledged the claim if that party has in effect admitted his or her liability to pay that which the claimant seeks to recover (see Surrendra Overseas Ltd. v. Government of Sri Lanka, [1977] 2 All E.R. 481 (Q.B.)). As the British Columbia Court of Appeal concluded in Podovinikoff v. Montgomery (1984), 14 D.L.R. (4th) 716, at p. 721, a person can acknowledge as a bare fact that someone has asserted (by making a claim) a cause of action against him, without acknowledging any liability. Simple acknowledgement of the "existence" of a cause of action is insufficient to meet the requirements of s. 16(1)(a). Acknowledgment must involve acknowledgment of some liability. [Emphasis added.] [46] I find that objectively construed, the October 23, 2023 letter from Mr. Daley intended to admit some liability on behalf of Mr. Scott for the maintenance orders registered against the title to his properties. It is more than an acknowledgement of the cause of action because the letter references an offer to pay. The amount offered was not accepted because it did not include the ongoing maintenance that had accumulated since the arrears were fixed in 1983. [47] When this letter was sent, the limitation period for the maintenance arrears for the first four children had already expired and so could not be confirmed. The arrears attributable to Kauries' support had not expired. Accordingly, the limitation clock began again on October 23, 2003 and continued for 10 years. [48] Prior to the end of that 10 years the 2012 Limitation Act came into force on June 1, 2013, and s. 3(1)(l) expressly states that the Limitation Act does not apply to a claim for arrears of child support or spousal support payable under a judgment or agreement. [49] I find that Kaurie's portion of the lump sum of maintenance arrears in the amount of $1000 remains enforceable as does the periodic support payable to her in the following amount: a) From June 1,1983 to November 1,1987 (54 months x $20 per month) = $1080; b) From December 1,1987 to September 1, 1990 (34 months x $25 per month) = $850; c) From October 1, 1990 to December 17, 1991 (15 months x $33.33 per month) = $499.95; d) From January 1,1992 to April 1,1993 (16 months x $50 per month)= $800; e) From May 1,1993 to March 6,1995 (23 months x $100 per month. = $2,300. [50] Kaurie's portion of the lump sum arrears and periodic payments is $6,529.95. There is no reliable evidence that any of this amount has been paid and given the deceased's history of non-payment, I do not exercise my discretion in his favour. [51] Post judgment interest should be applied to these amounts as set by the Court Order Interest Act, 1996 RSBC c. 79, s. 7(1). It accumulates monthly as simple interest equal to the prime lending rate of the banker to government. The parties are directed to recalculate interest on the figures set out in these reasons. [52] After Kaurie's 19th birthday on March 6,1995, the sum of $6,529.95 continues to accumulate monthly simple interest until the date that the amount is paid. Costs [53] The petitioner seeks an order that each party bear their own costs. The respondent seeks an order that special costs be payable out of the petitioner's portion of the deceased's estate so that the children do not bear the brunt of paying the costs of this application. [54] The respondent has been substantially successful in this application. Even though the result is not significantly higher than that which was proposed in 2003, the merits of this case do not favour the deceased who avoided his child support obligations for decades until the majority of the claims expired. The respondent was within her rights to oppose an order that did not take into account the periodic support orders. [55] The petitioner's position changed from a denial of any obligation to an acceptance that the Kaurie's claim may have been confirmed. Even with that admission, the parties could not agree on a calculation of the amount owed. I do not find the petitioner's conduct to be reprehensible. She came to court with reasonable proposals to settle this matter. [56] However, I find it would be unjust to make the respondent pay legal fees to collect these old arrears of child support which should have been paid to her at the time of the order. I find the deceased's conduct in avoiding his child support obligations until they expired while at the same time purchasing real estate is reprehensible. The respondent should be entitled to the same full indemnity for her costs that the petitioner is entitled to. This should not come out of the petitioner's share of the estate as the petitioner has acted properly and reasonably while acting within the scope of her office. [57] As Justice G. P. Weatherill said in Bull Estate v. Bull, 2015 BCSC 136: [139] However, it is a long-standing principle that executors are entitled to be indemnified for the costs they properly and reasonably incur while acting within the scope of their office; they will therefore receive a special costs award out of the estate: Royal Trust Corp. of Canada v. Clarke (1989), 60 D.L.R. (4th) 257 (B.C.C.A.) at para. 17. This general rule does not preclude the court from ordering that an unsuccessful litigant pay some or all of the executor's costs associated with proving the will in solemn form: Leung #2 at para. 82, Mawdsley v. Meshen, 2011 BCSC 923 at para. 39. [58] I order that the petitioner and the respondent each receive their special costs from the estate. "B. M. Young, J." The Honourable Justice Young