Family Law – When does Excluded Property lose its Character as Excluded Property?

,

Pursuant to s. 85(1)(a) of BC’s Family Law Act,SBC c 25 (the “FLA”), property acquired by a spouse before the relationship between two spouses begins is considered “excluded property.” Because of the language of s. 81 of the FLA,and unless the court makes a determination under s. 96, excluded property is not divided equally between spouses upon separation – in other words, each party leaves the relationship with the property they brought into the relationship.

However, what happens if one spouse (“Spouse 1”) gives a gift of excluded property, for example money or a house acquired by Spouse 1 prior to the relationship, to another spouse (“Spouse 2”) during the course of a relationship? Does the property lose its character as excluded property?

Once property loses its character as excluded property it becomes family property (see s. 84 of the FLA) and, pursuant to s. 81 of the FLA, will be subject to equal division on separation unless the court orders otherwise under s. 95.

Can Spouse 1 claim that the gift given to spouse 2 was a gift of excluded property which should be returned to Spouse 1 upon separation and u not be subject to equal division between the spouses?

In the recent BC case of VJF v SKW, 2016 BCCA 186, the BC Court of Appeal considered whether a $2 million gift of excluded property given by a husband to a wife lost its character as excluded property. The Court stated at paragraph 76: “…the $2 million gift received by Ms. W does “fall back into the communal pot” on separation and is divisible as family property in the normal way. The spouses are presumptively entitled to equal shares as tenants in common….”

How does a spouse protect him or herself from such a result? The Court noted at paragraph 78 that, subject to the other relevant provisions of the FLA, “the transferor can require the transferee to acknowledge that no gift of the excluded property (or its value) is intended.”

/by

When can a Court vary a Will? – Estate Litigation

,

Under the British Columbia Wills and Estate Succession Act, a court has the power to vary a Will from the original intentions of the testator. In Hagan-Bourgeault v. Martens Estate (2016 BCSC 1096), a daughter applied to have her mother’s Will varied. Tataryn v Tataryn Estate, [1994] 2 SCR 807, 93 BCLR (2d) 145 (SCC) outlines the factors that a court must consider when varying a testator’s Will. Ultimately, the Court may vary the Will as long as it is ‘adequate, just and equitable’ in light of the circumstances.

The contest in Hagen-Bourgeault was over a modest estate. The residue of the estate consisted of a structured settlement from ICBC, which paid a monthly income of about $2,200.00 per month. The mother left no immediate direct provision for her daughter in her Will, and did not disclose any reason for her failure to do so. Instead, the mother left the residue of her estate to her husband. The husband’s position was that it was the deceased’s intention that he should have the discretion to make payments to the daughter based on her needs. The Will also stated that if the husband predeceased the daughter, that the “residue of the estate was to be held in trust for the plaintiff” and to be paid at predetermined later dates.

In determining the appropriate division of the estate in Hagan-Bourgeault, the Court analyzed both the financial need of the daughter, and the moral claim that she had to the funds. The Court also reviewed the position of the husband. He only had a short relationship with the deceased and he was financially independent.

The Court held that it was just and equitable to vary the mother’s Will and give the residue to the daughter.

/by

What are your options if someone is defaming you online? – Defamation

Online defamation can have very harmful effects on your life. The power of the Internet means that information can be spread much more quickly and have far reaching personal and professional consequences. If someone is defaming you online, there are three options which might be open to pursue. These options are aimed at stopping individuals from continuing to post damaging information about you online.

The first option, although very difficult to obtain, is called an Anton Piller order. This remedy allows the court to seize the computer of the other person, so that they cannot continue to post online. However, courts are reticent to order the seizure of another person’s property, as the other party is not given notice and therefore cannot defend themselves in court. Therefore, generally, courts only award an Anton Piller order if the applicant can prove a number of different factors. Given the difficulty of proving the many factors, successfully obtaining an Anton Piller is unlikely.

A second option is to apply to the court for an interlocutory injunction. If granted, this order would prohibit someone from posting defamatory material online. To successfully apply for an interlocutory injunction, the court must be convinced, among other factors, that the applicant will suffer irreparable harm from the defamatory material published online. If a court has granted an interlocutory injunction against the individual and they continue to post online, then the applicant can apply for a contempt order for breaking the court order.

Third, it is also possible to apply for a permanent injunction against the individual posting defamatory material online. Courts have used this injunction to order individuals to permanently remove defamatory material from websites. By ordering the removal of the offending articles, the court has attempted to mitigate the damage caused by the defamatory articles.

The granting of one of these prohibitive orders might not the end of the road. It may be possible to argue that the individual posting defamatory material online should pay damages.

/by

Termination of Employees Without Cause – Wrongful Dismissal

The relationship between an employer and employee is contractual. As such, there is no general principle that an employer has to employ any particular person. Employment contracts, whether written or unwritten, can therefore be terminated provided certain requirements are met. To terminate an employee, an employer must give an employee notice that they are being let go or pay the employee compensation in lieu of giving notice.

Section 63 of the Employment Standards Act provides a severance formula for employees whose employment has been terminated. However, employees are frequently entitled to more than the amount stipulated in the Act.

In Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986 (S.C.C.) at paragraph 19, the Supreme Court of Canada stated “employment contracts for an indefinite period of time require the employer, absent express contractual language to the contrary, to give reasonable notice of an intention to terminate the contract if the dismissal is without cause.”

The Court then wrote at paragraph 22 that “what constitutes reasonable notice will vary in the circumstances of any particular case.” While calculating the exact amount of compensation varies from case to case, employees are frequently entitled to one month’s notice of termination or pay in lieu for each year they were employed with a company. In other words, if an employee worked at a company for 10 years and is dismissed without cause, the employee may be entitled to 10 months of notice or compensation in lieu of notice.

In van’t Slot v. Oncogenex Technologies Inc., 2010 BCPC 249 at paragraph 14, the court wrote that the Employment Standards Act sets out the “minimum notice” to which an employee is entitled upon being let go from a job. In van’t Slot, the court found that an employment contract can be drafted to expressly provide that an employee’s severance will correspond with the amounts in the Employment Standards Act.

The result of Machtinger and van’t Slot is that employers and employees can contract a specific time period for notice of termination or compensation in lieu. However, any provision setting out the notice or compensation period must line up with the termination sections of the Employment Standards Act, at a minimum. Employers and employees may wish to create certainty in the terms of employment by drafting a clause in the employment contract which provides that if an employee is dismissed without cause, the employee’s severance will mirror the termination sections of the Employment Standards Act. Without such a clause, an employee may be eligible for significantly more compensation than what is provided by the Act.

If you need legal advice on this subject or any other law related inquiry please contact us.

/by

What are you buying when you commission an original painting? Sale of Goods Act

In the recent British Columbia case of Brennan v. Burrow, 2016 BCPC 78, the purchasers of an original painting from an artist sued to recover the $9,000.00 purchase price.

The purchasers commissioned a painting for their West Kelowna home after viewing the artist’s work at the Calgary Stampede.  The purchasers noticed a problem immediately upon delivery of the painting – that there was a distorting glare due to the finish of the painting. They said that this glare makes it difficult to focus on the painting.  The artist denied the glare problem and stated that the painting had the same finish as the other paintings viewed by the purchasers.

In Court, the purchasers alleged there was an implied term in the contract – on the basis of s. 18 of the B.C. Sale of Goods Act – that the painting would be reasonably fit to hang in their living room.

The Court had to decide whether the contract for the painting is for the work and labour of the artist (separate from the actual painting) or whether it is for the original painting itself? The Court held that in British Columbia contracts for original paintings are for the work and labour of the painter. In other words the contract is not for the actual painting, it is for the time the artist spends on the production of the painting. Since s. 18 of the B.C. Sale of Goods Act only applies to goods, the Court held that there is no implied term in the contract regarding the painting being reasonably fit for the living room and dismissed the purchaser’s claim.

If you need legal advice on this subject or any other law related inquiry please contact us.

/by

Parenting time right of first refusal; court find disruptive to children when parent only away for short time – Family Law

Hannaford v. Hannaford, 2016 BCSC 398

One issue dealt with in this decision was whether a “right of first refusal” (regarding parenting time) adopted by the parties first in Minutes of Settlement, and later incorporated into a consent order remained appropriate.

The “right of first refusal” required that if one parent was unable to care for the children for a period of at least four hours during their parenting time they must offer the other parent the opportunity to care for the children during that period. At the time of this decision the children were 15, 13, and 9 years old.

The father argued that the “right of first refusal” was impairing his ability to normally parent the children when combined with his work schedule and required commuting time. The mother maintained that it was best for the children if they were with her while the father was not available. A section 211 report prepared by a psychologist recommended that the “right of first refusal” be abandoned. There was no concern about whether the children would be adequately cared for in the absence of the father.

Justice Gray found that requiring the “right of first refusal” after only four hours was disruptive to the children under the circumstances decided that the period for invoking it should be extended from four hours to twenty-four hours. How this number was arrived at was not explained.

/by

Court clarifies child support calculations for disabled adult children – Child Support

Sindaco v. Sindaco, 2016 BCSC 389

This case involved the determination of the appropriate amount of child support for an adult who remained a child of the marriage due to psychological disability. The adult child was estranged from his father, who was the payor, and lived with his mother, who was the recipient.

The father earned approximately $53,000 per year, and the mother $10,890. Their proportionate split of their incomes were 83% and 17% respectively. If the Federal Child Support Table were applied the father would pay table child support of $488 per month.

The adult child received $906 per month in disability benefits.

Justice Steeves applied the approach from Kohlmuss v. Kohlmuss, 2015 BCSC 1101 in determining appropriate child support, which requires the

-calculation of reasonable costs of the child;

-deduction of the amount of the disability benefit; and

-division between the parents proportionate to income of any shortfall.

One topic of discussion was to what extent the adult child should be afforded discretionary spending money. Justice Steeves determined that inclusion of some spending money was an appropriate expense, despite the child’s history of using such money wastefully, or in some case for purposes harmful to himself.

Ultimately, Justice Steeves found that the current situation where the child was allowed to spend much of his disability benefit as discretionary funds was not appropriate; however, determined that an amount of $50 per week for discretionary spending was appropriate.

The child’s expenses were calculate as $1,140 per month leaving a shortfall of $234 after the disability benefit was applied. The father’s proportionate share based on income was therefore $194.

/by

Tenant’s grow-ops and knowledge: when will your insurance be invalid? Insurance Law

Bahniwal v. The Mutual Fire Insurance Company of British Columbia, 2016 BCSC 422

The plaintiff’s owned and operated a garden center in Oliver, BC, which was severely damaged by fire. The plaintiff’s also operated a residential rental suite on the property. In the course of responding to the fire it was discovered that the rental suite contained a marijuana grow-op conducted by the suite’s tenant.

There was no indication that the fire was at all related to the grow-op, though the cause of the fire was undetermined. The plaintiff’s insurer refused to cover the fire damage on the basis that they believed the plaintiff was aware of the grow-up, but failed to disclose it to the insurer. The insurer maintained that had the grow-up been disclosed they would have declined to renew the plaintiff’s insurance.

Statutory conditions 1 and 4 of fire insurance policies allow the insurer to void the insurance where there is a misrepresentation, or a failure  to disclose a material change to the risk to insured property.

The main issue was whether the evidence supported a finding that the plaintiff was aware of the grow-op either directly, or through her husband. The plaintiff denied any such knowledge.

While neither the plaintiff or her husband conducted period inspections of the suite, they had on one occasion attended to inspect the suite to determine whether it would be suitable for housing seasonal farm workers, and on other occasions attended to complete repairs and modifications to the suite. The evidence supported that the plaintiff’s husband attended the suite roughly every few months, and either entered the suite, or looked in through the window. The plaintiff and the defendant denied that anything ever appeared amiss.

The hydro bills for the suite went directly to the plaintiff’s husband, who then gave them to the tenant to pay. Some of these bills showed substantial fluctuations in the power used by the suite, which a police officer indicated was consistent with a grow-op existing many months before the fire. The husband testified that as the tenant always paid the bills he did not pay attention to the amounts.

Justice Joyce found the plaintiff and her husband to be credible, and accepted their testimony that they were not aware of the grow-op. As such, the insurer was required to honour their insurance contract.

The plaintiff sought punitive damage based, however they were not successful as Justice Joyce found that the insurer had not acted in bad faith, or with undue haste, and that based on the evidence they had a reasonable, though ultimately incorrect, basis for denying coverage.

/by

Mother denied Father parenting time with their child ordered to pay $2,500 – Family Law

KR v JW, 2016 BCSC 225
This decision of Justice Betton involved an in-depth analysis and application of section 61 of the Family Law Act. Section 61 provides for remedies where one person entitled to parenting time or contact with a child is wrongfully denied that parenting time or contact by a guardian of the child. The section provides for a variety of remedies, which include but are not limited to ordering make-up time with the child or fining the guardian.

In KR v JW, the father claimed that the mother had actively and passively denied him parenting time with their child and that this and other behaviour had led to parental alienation and the child expressing reluctance to spend time with him as a result. The father also claimed that the mother had not done enough to encourage the child to spend time with him.

Justice Betton engaged in a lengthy discussion of the limited case law regarding this section, as well as the purpose and intent of this section. In deciding this case he clarified three important issues regarding the application of this section:
1. The section applies not only to discrete or individual incidents of denial of parenting time but allows the court to make a nuanced examination of patterns of behaviour over time. Even when individual incidents may not necessarily appear to be wrongful denies on their own, a pattern of behaviour by a guardian may still be characterized as wrongful denial.

2. When a child is resistant to parenting time or contact, the court must look at the source of that resistance, as well as examine the guardian’s response to that resistance. If the guardian’s response is not appropriate, such as if they do not adequately encourage the child to spend time with a person entitled to parenting time or contact, this may constitute wrongful denial.

3. Where a person entitled to parenting time or contact with a child agrees or acquiesces to foregoing contact or parenting time in the face of a denial does not in and of itself absolve the guardian from wrongful denial. Ultimately Justice Betton found that there had been a wrongful denial of parenting time by the mother in this case, and ordered that she pay $2,500 to the father for the benefit of the child so as to “impress upon [her] the seriousness of the issue”.

/by

Heath Law LLP announces the addition of Rick Killough – Team

Rick Killough

The Nanaimo B.C. law firm Heath Law LLP is very pleased to announce that Rick Killough has joined the firm effective February 1, 2016. Mr. Killough will be practicing with the ICBC Insurance Defence (Insurance Litigation) Group.

Rick has practiced for more than 25 years. He spent the first 11 years of practice with Douglas, Symes & Brissenden in Vancouver as an articled student, associate and then partner. He then moved to the Vancouver office of Miller Thomson LLP where he spent the next 15 years as a partner.

In addition to ICBC Defence personal injury litigation, Mr. Killough has also acted for insureds in a wide variety of liability situations, including professional negligence claims, product liability claims and occupier’s liability claims.

Rick is a past Chair, Canadian Bar Association – Insurance Law Subsection (BC Branch). He has appeared numerous times at all levels of court in BC. He was listed in Best Lawyers in Canada, Personal Injury Litigation in 2016. He is a member of the Canadian Defence Lawyers Association and Canadian Bar Association. Contact Rick Killough today.

 

/by