Valuation Date And The Former Family Home

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With the rapidly rising real estate market in British Columbia, one point of concern following separation can be when the former family home should be valued for the purposes of property division.  Should post separation market gains be included?  What if only one party is paying the mortgage?

Section 87 of the Family Law Act provides that unless an agreement states otherwise, or a judge orders otherwise, family property is valued as of the date of a separation agreement, or the date of the hearing to determine division of property as the case may be.

In the case of a separation agreement, the valuation date can be a point of negotiation.  However, if a family law dispute requires court intervention, there can be much less flexibility in dealing with the valuation of the family home.

British Columbia judges have interpreted this section as meaning that in the majority of circumstances, the date of the hearing (i.e. the present date) will be used unless there is good reason to use another date.  In order for some date, other than the present date, to be used, the courts have held that a present date valuation must result in “significant unfairness” to one or both parties.

Factors that will be considered in determining whether “significant unfairness” arises in these circumstances include whether one party has had sole use of the property, whether one party has been solely responsible for the upkeep and expenses of a property, whether the party who moved out has been prevented from purchasing a new property, or what expenses the party who has moved out has incurred for accommodations (e.g. rent).

As a result of this interpretation of section 87 and the current real estate market, the amount of time a family law dispute takes to resolve can significantly impact the division of family property.  Depending on the circumstances, one party may be more than happy to wait for resolution, while the other party may want to resolve the value of the family home as soon as possible.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Personal Injury – Soft Tissue Injuries

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Soft tissue injuries are a very common type of injury affecting muscles, ligaments and tendons. These injuries often arise from motor vehicle or slip and fall accidents and can, due to the potential for significant pain and discomfort, have a substantial effect on a person’s ability to function in their everyday life. Although soft tissue injuries can often resolve on their own, or with appropriate treatment, sometimes they can be long-lasting or permanent.

Compensation for Soft Tissue Injuries

As soft tissue injuries can cause pain or discomfort, they can prevent a person from enjoying the same activities they had before the injury. A soft tissue injury may also affect a person’s ability to work, or the ability to work to the same extent as he or she had prior to the injury. People who are suffering from soft tissue injuries may be entitled to compensation for the effect the injury has on their lives. This may include compensation for lost wages, future earnings, pain and suffering, and any out-of-pocket expenses that the individual incurred to treat the injury.

Receiving Compensation for Soft Tissue Injuries

Although soft tissue injuries can be significant injuries, unlike broken bones or other visible injuries, they are often very difficult to prove. Often there are no observable signs of a soft tissue injury and the only person who can give evidence that there is such an injury is the person who has suffered the injury. For this reason, it is often beneficial to speak to a personal injury lawyer to help you present your case and determine what may be fair compensation for your injuries.

 

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Family Law: the Importance of Attending Court Hearings

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When you have been served with papers in a family law claim, it is essential that you and/or your lawyer attend Court on all scheduled dates.  The recent decision of AJD v. CD, 2018 BCSC 73 [“AJD”], demonstrates that missing a court date can result in an Order being made against the party who fails to attend a hearing, and also shows that having the Order set aside can be very difficult.

In AJD, a Respondent missed his court date and the judge, amongst other things, ordered the Respondent to pay $522,408.24 in child support arrears and ordered that the arrears were payable forthwith.  The Respondent appealed, but also filed a Notice of Application seeking, amongst other things, to have the Order set aside.  The Honourable Madam Justice Young wrote that to set aside an order when a party missed a hearing date, an applicant must show:

  1. the failure to appear was not wilful or deliberate;
  2. the application to set aside the judgment was made as soon as reasonably possible;
  3. the defence is worthy of investigation; and
  4. all requirements are established through affidavit material filed on behalf of the applicant.

With respect to factor 1 of the above test, Madam Justice Young wrote

[17]        I do not accept the respondent’s assertion that his failure to attend the court hearing was not wilful or deliberate.  I find instead that he was well aware of this ongoing court application which had gone on for over a year and he deliberately refused to open envelopes and inform himself of the status of the litigation.  I find it highly unlikely that [the respondent’s lawyer], who suggested the hearing date of July 24, 2017, would not communicate this with the respondent.

With respect to factor 2, Madam Justice Young wrote:

[21]        This application was brought on December 1, 2017.  I find this was made within a reasonable time albeit not as soon as reasonably possible.  The application was brought after the Order was entered which further restricts the jurisdiction this Court has in making any reconsideration.

With respect to factor 3, Madam Justice Young wrote:

[34]        I conclude that there are defences worthy of investigation, but because the respondent has not satisfied the Court that his failure to appear at the Hearing was not deliberate, this Court is not in a position to set aside the Order nor can this Court reconsider any portion of Order now that the Order is entered.  This Court is functus officio.

In addition to seeking to have the Order set aside, the Respondent also sought a stay of execution on the Order until his case could be heard by the Court of Appeal.  With respect to granting the stay of execution on the Order, Madam Justice Young wrote:

[40]        New evidence has been provided about the respondent’s current financial circumstances.  He is now separated from his second wife who holds an interest in all of his assets.  His home and bank account are in joint names with his spouse.  His RRSPs are in his sole name.  The claimant intends to enforce the Order.  If she does, he may suffer hardship pending the appeal.  Enforcement of the Order would liquidate most of his assets.  If he had to liquidate the RRSPs, he would incur significant income tax liability.  Once the funds were released to the claimant they would be difficult to reattach.

[41]        The respondent may suffer harm if the claimant successfully attaches his assets pending appeal.  I am not satisfied that this would be irreparable given that the claimant will likely not be able to liquidate the jointly held assets and I am uncertain whether the RRSP is attachable.

[42]        The claimant and the children have suffered actual harm for years by receiving far less child support than they were entitled to do.  The children still have needs as they embark on university education with no funds.  The claimant has incurred debt to meet their past needs and is not in a position to financially assist them with their educational costs.

[43]        On a balance, I find the actual harm to the claimant and the children is greater harm than the possible harm to the respondent.

[44]        The respondent has suggested a reasonable proposal in the alternative.  He acknowledges that some arrears exist and he offers to pay $5,000 a month toward the arrears pending the outcome of the appeal if a stay of execution is granted.  That payment would be in addition to the ongoing child support which he is paying.  This alternative would alleviate some of the immediate needs of the children.

[45]        I will grant a conditional stay of execution.  As long as the respondent continues to pay $5,000 per month commencing February 1, 2018 and continuing on the first day of each and every month until further order of this Court or the British Columbia Court of Appeal, then the execution of the Order shall be stayed.  If the respondent is in breach of the condition, the claimant may apply to this Court after the respondent has been in breach for 30 days to lift this stay of execution.

Therefore, while the Respondent succeeded in obtaining a conditional stay of execution in respect to the Order, if he failed to make payments as ordered by the Court, the Respondent risked having the terms of the original Order enforced against him.

 

If you wish to discuss a family law issue, please contact any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward at Heath Law LLP (250-753-2202) to make an appointment.

They can also be contacted by email at ksugiyama@nanaimolaw.com, cmurphy@nanaimolaw.com or nseaward@nanaimolaw.com

 

 

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Family Law – Best Interests of the Child

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The recent decision AL v. LW, 2017 BCSC 964 [“AL”] illustrates how the court might apply the factors for determining the best interests of the child under BC’s Family Law Act [“FLA”], and also illustrates how a “section 211” report may assist the court in determining the best interests of a child.

A section 211 report refers to section 211 of the FLA which authorizes the court to appoint a person to assess the needs of a child, the view of a child or the ability and willingness of a party to satisfy the needs of a child.  These reports were sometimes called “custody and access reports” or “parenting reports”.

In AL, the father sought increased parenting time with a child. The parties had never married but had lived in a marriage-like relationship. The parties had executed a Separation Agreement which addressed guardianship and parenting responsibilities.

The court also had the benefit of a section 211 report prepared by Dr. England.

The court noted that the key legislative provisions of the FLA that relate to increasing parenting time are sections 37 and 40, which are reproduced below:

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a)  the child’s health and emotional well-being;

(b)  the child’s views, unless it would be inappropriate to consider them;

(c)  the nature and strength of the relationships between the child and significant persons in the child’s life;

(d)  the history of the child’s care;

(e)  the child’s need for stability, given the child’s age and stage of development;

(f)   the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g)  the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h)  whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

(i)   the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j)   any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

…

40 (4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a)  that parental responsibilities should be allocated equally among guardians;

(b)  that parenting time should be shared equally among guardians;

(c)  that decisions among guardians should be made separately or together.

The Court placed the above provisions in context by adopting KDP v. ARK, 2011 BCSC 1085 (CanLII):

[1]        No parents are perfect. All have flaws of one kind or another. If families stay together, except in those rare circumstances in which a child is found to be in need of protection, the state and the courts allow imperfect parents to raise their children as best they can. The children, in most cases, are no worse for wear for the experience.

[2]        If families separate, however, and issues of custody and access arise, in the guise of determining the best interests of the child, a parent’s flaws of character and conduct are put under a microscope. In such circumstances, care must be taken not to lose sight of the strengths that a party brings to the challenge of raising a child.

As an illustration of how the courts will consider the individual subsections of section 37 of the FLA, refer to the below paragraphs from AL, as drafted by Mr. Justice Funt:

[65]        With respect to s. 37(2)(a), … the daughter’s health and emotional well-being would benefit from far greater time with her father. The mother and father each has the qualities of a good parent as does the mother’s common-law partner. I agree with Dr. England’s statement: “There is no reason to deprive [the daughter] of the benefit of having her father as fully involved in her life as possible”.

[66]        With respect to s. 37(2)(b) and (c), it is apparent that once settled with her father, the daughter enjoys a caring, nurturing, and loving relationship. The daughter enjoys being with her father. I find that it would be in the daughter’s best interests to have far greater contact with her father.

[67]        With respect to s. 37(2)(d), the predominant history of the child’s care has been with her mother. For this reason, the transition as Dr. England recommends is a prudent course which I adopt as appropriate in the case at bar. I also adopt Dr. England’s recommendation that the daughter have individual therapy sessions with a copy of Dr. England’s report given to the therapist. I will also order that a copy of these Reasons be given to the therapist.

[68]        With respect to s. 37(2)(e), the parenting time Dr. England recommends will provide the needed stability. The parents share the view that the current schooling arrangements are appropriate and there are no plans of either of the parties to move from the Victoria/North Saanich area.

[69]        With respect to s. 37(2)(f), I am satisfied that each of the mother, the father, and the mother’s common-law partner has the ability to exercise appropriately his or her responsibilities.

[70]        With respect to s. 37(2)(i), the Separation Agreement addresses most aspects of guardianship and parenting responsibilities. Although I will not order the appointment of a parenting co-ordinator, I would encourage the parties to retain a parenting co-ordinator. Although the costs associated with a parent co-ordinator are significant, the costs are likely less than those associated with mediation or returning to court. A parenting co-ordinator can also make decisions quickly as the need arises.

The Court ultimately permitted the father to have increased parenting time in accordance with the schedule and transition periods set out in Dr. England’s section 211 report.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

 

 

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Limitation Dates and Family Law

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One area where the law in British Columbia continues to treat common-law and married couples differently is how much time following the breakdown of their relationship a person has to initiate a family law claim against their former spouse.

While claims for child support are not subject to a deadline (referred to as a “limitation date”), claims for division of family property, division of family debt, division of pension entitlement, and spousal support are subject to a 2-year limitation date for initiating a claim.

The question is when the 2-year limitation period starts to run.

For common-law relationships, the limitation period begins to run on the date the spouses separate. This can be somewhat complicated, as former spouses can continue to live in the same house following separation due to their family situation (i.e. not wanting to move away from their children) or because of their financial situations (i.e. they cannot afford to maintain two separate households).  In some circumstances, the spouses may have different views on which day they separated.

For married couples, the limitation period begins to run on the date the Court grants a divorce judgment or declares the marriage to be a nullity.

As an example, either member of a married couple, separated for 6 years, is able to initiate a claim against the other for division of family property or spousal support so long as a divorce has not been granted.  For a common-law couple who has been separated for 6 years, each member lost the ability to seek a division of family property 4 years prior, i.e. two years after separation.

Section 198(5) of the Family Law Act provides that if the parties are engaged in “family dispute resolution” with a “family dispute resolution professional” (which the Family Law Act defines as being a family justice counsellor, a parenting coordinator, a lawyer, a mediator, or an arbitrator), then the running of the limitation period is suspended while they are doing so (i.e. it is put on hold).

The effect of this provision is that if certain attempts to resolve a family law dispute outside of court are made, then the ‘clock’ temporarily stops.  This would prevent a couple engaged in active negotiations from having to start court proceedings to preserve their rights just because of the passage of time.

Following the expiration of the limitation period, former spouses lose the property rights provided to them under the Family Law Act and are viewed no differently than other, arms-length individuals.  This means that unless property is jointly owned (such as a home where both parties are on title), a spouse may lose the ability to seek an interest in the property retained by the other spouse following the breakdown of their relationship.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Family Law – Separation and the Family Pet

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Many people have family pets that they consider to be members of the family. However, when spouses separate, they must determine who gets to keep the pet. In British Columbia, pets are not treated like children and are considered to be property. As a result, for couples who are either married or who have lived in a marriage-like relationship for two years, any pets of the relationship are generally divided along with the rest of the property of the relationship according to the Family Law Act.

Other Considerations

If a separating couple decides to go to Court to determine who gets to keep their pet, the Court will award the pet to one of the spouses. There are a number of factors that may help determine who gets to keep the family pet, including:

  • How the couple acquired the pet and who paid for it;
  • Who pays for most of the pet’s expenses;
  • Whether one person has a closer bond with the pet;
  • Who took care of the pet;
  • Who is the registered owner of the pet; and
  • Who has been taking care of the pet since the couple separated?

Agreements

Although, many people treat their pets like children, a Judge will not order that two people share time with their pet like a Court would normally do with a child. For this reason, and because going to Court can be very unpredictable, it may be a good idea for a separating couple to come to an agreement as to how they will share time with their pet. A separating couple can agree to share a pet or otherwise resolve pet custody issues through a Consent Order or through a Separation Agreement.

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Family Law – Child Support

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Effective November 22, 2017, the Federal Child Support Guidelines Child Support Table has been updated to account for tax and other changes since the previous Child Support Table came into effect on December 31, 2011.

The minimum gross annual income at which the Child Support Table applies has been increased from $10,820.00 under the 2011 Table to $12,000.00 under the 2017 Table.  As a result, the Table no longer specifies a child support amount for payors living in British Columbia with an annual income of $11,999.00 or less.

For child support payors living in British Columbia with an annual income of between $12,100.00 and approximately $27,000.00 (depending on the number of children for which support is being paid), specified child support has decreased under the 2017 Table.

For child support payors living in British Columbia with an annual income exceeding approximately $27,000.00, specified child support has increased under the 2017 Table.

The maximum annual income for which child support is specified for remains unchanged at $150,000.00.  Beyond that income, there is a formula upon which child support is based.

For example, a payor living in British Columbia with an annual income of $17,000.00 paying child support for one child will now pay $111.00 per month under the 2017 Table as opposed to $133.00 per month under the 2011 Table. A payor living in British Columbia with an annual income of $75,000.00 paying child support for 3 children will now pay $1,522.00 per month under the 2017 Table as opposed to $1,483.00 per month under the 2011 Table.

The changes to the Table are relatively minor, however, over a number of months or years may add up. If you are required to pay child support, or receive child support as a result of an order made prior to November 22, 2017, we would encourage you to consult with a lawyer to ensure that a child support underpayment, or overpayment does not accumulate.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law at 250-753-2202.

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Family Law: Poor Behaviour and Parenting Time

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When Bad Behaviour by one Spouse can Impact Parenting Time

In the recent case SEV v. TMV, 2018 BCSC 30 (“SEV”), the BC Supreme Court considered whether to grant a father increased parenting time.

In SEV, the two parties, a father and mother, were married and had two children aged approximately 7 and 9 at the time of trial. The parties separated on January 2, 2015, and in January 2017 the children began spending four days and four nights with their mother, followed by four days and three nights with their father.

The Court made several findings with respect to the father’s conduct towards the mother, including that the father sent the mother offensive text messages, communicated with others negatively about the mother, including with co-workers at the parties’ place of work (both the mother and father were RCMP officers), and that the father had two offensive decals on his truck which he acknowledged were directed at the mother – a vehicle which he used to transport the parties’ children while he exercised parenting time.

The father’s conduct was such that he was formally reprimanded by the RCMP for his communications with other members of the Detachment. The father was also ordered not to park his truck on RCMP property until the offensive decals were removed, but, at the time of trial, the father continued to park his vehicle on the street close to the Detachment so he did not have to remove the decals in questions.

In determining how to allocate parenting time, the judge noted that the legal framework for the analysis regarding parenting time is set out in ss. 37-42 of the Family Law Act and s. 16 of the Divorce Act, and that the primary purpose of these provisions is for the Court to consider the best interests of the child or children.

In reaching the decision, the judge wrote:

  • He was not satisfied that it was is in the children’s best interests that the status quo regarding primary residence and parental responsibilities should be altered;
  • The father still harboured significant anger towards the mother which at times was detrimental to the children. This included the father’s steadfast refusal to remove the offensive decals from his truck, and what the judge considered the father’s “intransigence” in communicating appropriately at times with the mother regarding the children;
  • The mother, at the time of trial, was the more stable and reliable parent;

The judge also wrote:

[40]         I would add that, although I was not asked by [the mother]to make a finding that [the father’s] conduct towards her amounts to family violence as defined in s. 1 of the FLA and its assessment per s. 37 and 38, in my view it is very close to the line in that regard. The fact that [the father] continues to drive the children in his truck bearing the decals in question remains an important consideration regarding ongoing parenting arrangements. That is because it would be a simple matter to remove the decals but [the father] has chosen not to do so, notwithstanding his employer’s view of the matter and the needless ongoing embarrassment and discomfort which they cause [the mother]. They will also, at some point, no doubt be the subject of questions from the children.

As a consequence, the judge ordered a shared parenting schedule on a rotating cycle whereby the mother would have parenting time for six days, and that the father would have parenting time for two days thereafter.

 

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Resulting Trusts: Making Gifts during Your Life

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In order to minimize taxes, avoid probate fees, control distribution or to avoid estate litigation that may result from a Will, some people decide to give away some or all of their assets while they are alive. However, in some cases, giving a gift during your lifetime and outside a Will may lead to litigation to determine whether the person giving away the asset intended to give a gift.

Gifts Made During a Person’s Life

A person may make gifts during his or her lifetime by giving another person a particular item, money or an interest in property.  When a person makes a transfer of an item without receiving anything in return, the law presumes that there is a Resulting Trust. A Resulting Trust means that the person who received the transfer of the item holds the item in trust for the person who made the transfer. In other words, the person who made the transfer keeps the beneficial ownership of the transferred item because he or she did not receive anything in return for its transfer. In these circumstances, the person who received the transfer of the item has an obligation to return the item to the person who transferred it.

There are exceptions to the presumption of a Resulting Trust. For example, there is an exception where a parent has given a gift to a minor child. In these circumstances, the law presumes that the parent intended to give a gift to his or her minor child. This exception does not apply where a parent gives a gift to his or her adult children.

The person who received the gift may be able to rebut the presumption of a Resulting Trust and establish that the transfer was indeed intended it to be a gift. In these cases, the law looks to whether the person who made the transfer intended to give a gift or if they made the transfer for some other purpose (and believed that they would have the item returned). If a Court determines that the person who made the transfer intended to give a gift, no Resulting Trust will be found.

Unequal Distribution under a Will

How a person organizes their financial affairs while they are living may result in what seems like an unequal distribution of their financial assets to family members upon that person’s death. Beneficiaries may argue that, due to the presumption of Resulting Trust, gifts that the deceased made during his or her life were meant to be divided within the Will.  For example, a person may transfer a large sum of money to his or her adult child to help make a down payment on a house. In this case, the transfer may result in a smaller estate available to be shared by the beneficiaries under the Will. Beneficiaries under the Will may argue that the money advanced was only a loan and that the presumption of Resulting Trust applies such that the money should be returned to the Estate and divided according to the Will.

Making the Gift

When a person wishes to make a gift, he or she may want to clearly demonstrate that it was his or her intention to make a gift and not to have the item returned. For example, in the scenario described above, the parent may wish to create a Deed of Gift – a written document – stating that the money is a gift and that the other party does not need to pay the money back.

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Personal Injury Damages – Avoiding Homeowner Liability

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As the weather becomes colder, it is important to be aware of the increased risks that result from the accumulation of snow and ice. In Canada, property owners and occupants have a responsibility to act reasonably to remove snow and ice to ensure that their property is not slippery or otherwise unsafe. The responsibility to remove snow and ice extends to the walkways in front of the occupier’s home.

What happens if someone falls?

If a person slips or trips on snow or ice that accumulated due to the owner/occupier’s negligence in failing to keep the property safe, he or she may sue for damages to recover the losses suffered. In order for a person who suffers a slip and fall on ice or snow to prove that the owner/occupier was negligent, he or she must show that the conduct of the owner/occupier fell below the accepted standard for clearing snow and ice. People walking on snowy or icy surfaces are also expected to take reasonable care by walking carefully and wearing reasonable footwear. If a person who suffers a fall was not acting reasonably, a Court may find that he or she was contributorily negligent and may reduce any damages awarded.

Removal of Snow or Ice?

Ensuring that your property is free of ice and snow can be challenging during the winter months, particularly when temperatures are changing quickly. However, an owner/occupier must only act reasonably in the circumstances to ensure that his or her property is safe, which means clearing snow and ice within a reasonable amount of time. Determining what is reasonable will depend on a number of factors, including typical weather conditions in the area and if the snow or ice was sudden or unexpected.

In addition to an owner/occupier risking liability for damages due to their negligence for failing to keep their property clear of snow or ice, they could also be exposed to a fine from the City/Municipality where the property is located.  Many cities have bylaws that prescribe specific time requirements for salting sidewalks and shovelling driveways or walkways. For example, in Nanaimo, British Columbia, owners/occupiers must remove snow and ice from walkways within 24 hours of the snow or ice accumulating.

Although a City may set certain time limit for snow or ice removal, a Court may still find an owner/occupier liable for damages if it concludes that the snow or ice should have reasonably been removed before the time period prescribed by the City. For this reason, it is important to be careful to diligently maintain your property and walkways during the winter months.

 

 

 

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