Family Law: Date of Separation

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When dealing with a divorce or separation from a spouse, determining the date of separation could be crucial.  For example, if the value of an asset is being divided as of the date of separation (a bank account, for example), then the date of separation could be crucial if the balance goes up or down significantly.  However, the date of separation may not be agreed upon by the spouses, and it can significantly affect property division, child and spousal support, and even the ability to bring a family law claim.

If the spouses disagree on the date of separation, the Court may look at several factors to determine which separation date is accurate:

  • Whether the spouses lived in the same house or slept in the same bedroom;
  • Whether the spouses vacationed together;
  • How the spouses participated in joint social activities and the manner in which the spouses presented themselves to others;
  • Plans for the future, including estate planning;
  • The absence of sexual relations;
  • The absence of communication between the spouses;
  • Attempts to reconcile the relationship;
  • The performance of household tasks and changes to routines;
  • Economic support and dependency between the spouses;
  • How the spouses conducted their financial affairs, including how they filed their taxes; and
  • How the spouses engaged with their children.

The Court may consider factors beyond those in this list, and the presence or absence of any particular factor is not determinative.  For instance, spouses may be separated but remain in the same house because of financial circumstances.  It only requires one spouse’s intention to terminate the relationship.  Both spouses do not need to agree that the relationship is over.  The Court will objectively assess all of the evidence and determine if or when one spouse intended to separate and communicated that intention through words or conduct to the other spouse.

If you would like to book an appointment with any of our family law lawyers, please contact Heath Law LLP at 250-753-2202 or toll free: 1-866-753-2202.

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Estate Planning & Risks of Joint Tenancy

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Estate Planning – Considerations when Adding a Child as Joint Tenant to your Property

Many parents put their children on title to their residence as a form of estate planning. While this can help avoid probate fees and possibly assist with ease of administration of an estate, the case of Gully v. Gully, 2018 BCSC 1590 [Gully], demonstrates that parents must be careful when adding children onto title to their residence.

In Gully, a mother added her son as a joint tenant on title to her Burnaby property. She did so based on legal advice she received, including that her estate could avoid probate fees. She did not tell her son that he had been added as a joint tenant to title of the property.

In August of 2017, the son, and his company, consented to a judgment of $800,000.00 in favour of Ledcor Construction Limited (“Ledcor”). Ledcor discovered that the son was on title to the property and registered their certificate of judgment on the son’s undivided half interest in the property.

The mother sought a declaration, amongst other things, that the son held the property on a resulting trust for her estate. The court found that the son did not hold the property on a resulting trust for the estate and permitted Ledcor to retain their judgment on title, ultimately stating:

 [24]        Ms. Gully took a risk in registering her son as a joint tenant on her property. Whether she was properly advised of that risk is not before me. However, once she made the decision to register an interest in the Burnaby Property in Mr. Gully’s name, third party creditors of Mr. Gully became entitled to register judgments against Mr. Gully’s interest in the Burnaby property.

If you would like to book an appointment with any of our estate planning lawyers, please contact Heath Law LLP at
250-753-2202 or TOLL FREE: 1-866-753-2202.

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What to do After You Have Been in a Car Accident

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After a motor vehicle accident it is very important to gather the appropriate information in case of a he said/she said battle over legal responsibility or liability.

Assuming that you do not need emergency medical attention after the motor vehicle accident you should look at and record the other driver’s licence number, the licence plate of the vehicle that hit you as well as their insurance information. It is worth stressing the importance of verifying the other driver’s licence number and not just asking for their name. This will remove the chance of the other driver providing you with a phony name. Take a picture of the other vehicle (and licence plate), the other driver and the other driver’s licence.

Also, take pictures of the scene of the accident, which would include any damages to vehicles as well as the position of the vehicles after the accident. If there are any 3rd party witnesses, their information and identity should be recorded to provide their account of the accident if there is a battle over liability.

After the accident there are also different entities that you should contact. Right after the accident you should contact ICBC. At this initial contact you should provide ICBC with the information that you gathered at the scene of the accident. Also, it may be necessary to call the police after the accident. If it is a hit-and-run accident you must contact the police; by calling the police you create a record of the accident which can be of assistance later on in the ICBC process. Finally, you should contact a personal injury lawyer. The lawyer will act on your behalf, guide you through the legal process and ensure that you are appropriately compensated from the accident.

If you or someone you know has been in a car accident contact Heath Law LLP.

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The Defence of Inevitable Accident

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On your usual commute to work something unusual happens. While driving to work, a wild animal darted across the road which resulted in you colliding with another vehicle and injuring the other driver. The other driver has sued you and the liability for the accident has currently been assigned to you at 100%. You are thinking that this is extremely unfair as there was nothing that you could have reasonably done to avoid the accident. This situation is governed by the defence of inevitable accident (the “defence”).

The defence places an onus on the person asserting the defence to prove that the exercise of reasonable care while driving could not have prevented the accident. The circumstances of the accident must have been beyond the driver’s control.

The defence has been pled in a few different scenarios in which the defendant has claimed that the accident was entirely out of their control. For example, defendants have pled the defence when a rogue bee has flown into their car, when a wild animal darts across the road and when the driver loses consciousness while driving.

For the defence to be successful the court must be satisfied that the inevitable accident was indeed inevitable and that the circumstances causing the accident were not reasonably foreseeable.

The court must be satisfied that there was nothing that the driver could have done to avoid the accident. For example, the defence may not be successful every time an animal crosses the road as the amount of time to react, the driver’s attentiveness and the type of animal will be considered. A driver’s evasive or lack of evasive action must be deemed by the court to have been reasonable in the circumstances.

The court must also be satisfied that the circumstances which caused the accident were not reasonably foreseeable. For example, if the road you were travelling on was frequented by darting deer, it would make a deer appearing on the road and causing an accident reasonably foreseeable. Also, if you have a health condition that may cause you to lose consciousness, losing consciousness on the road and causing an accident could be also be considered reasonably foreseeable. Lastly, if you know that the outdoor temperature was going to cool below freezing after a rain, slipping on ice would be reasonably foreseeable.

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What is needed for a Valid Will

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Not every attempt to make a valid Will is successful. The Wills Estates and Succession Act (WESA) of British Columbia has certain requirements that must be established and proven if the Will is to be deemed valid.

There is an age requirement that is designated by s. 36 of the WESA. S. 36 states that a person who is 16 years or older and is mentally capable may make a Will. A Will that is made by someone under 16 is therefore presumptively invalid.

There are other somewhat more technical requirements needed to make a valid Will found in s. 37 of the WESA. For a Will to be valid it must be (a) in writing, (b) signed at its end by the Will-maker or the signature at the end must be acknowledged by the Will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the Will-maker. S. 40 of the WESA provides the age requirements for witnesses to a Will. Signing witnesses to a Will must be 19 years of age or older.

Once the technical requirements for making a Will are met there are also limitations to the type of property that can be gifted in a Will. S. 41 of WESA states that a person may by Will, make a gift of property to which he or she is entitled at law or in equity at the time of his or her death, including property acquired before, on or after the date the Will is made. This effectively means that one is only able to gift property that the Will-maker actually has or is entitled to.

Creating a Will is a significant life event that needs to be attended to with the proper diligence and care. If you would like to create your first Will or have any questions regarding your existing Will please contact Heath Law LLP at 250-753-2202.

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How are Damages Calculated from a Motor Vehicle Accident?

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Once liability (or legal responsibility) for a motor vehicle accident has been determined the remaining question is the quantum or amount of damages to be awarded.  There are 5 different heads of damages that must be considered in arriving at the final amount: past wage loss, future wage loss, non-pecuniary damages, costs of future care and special damages.

The legal principle that governs the entire process of awarding damages is that, insofar as is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendant’s negligence.

Past wage loss deals with the victim’s lost earnings from the accident up until the point of trial.  This amount is determined through employment records, medical records and any other relevant materials.

Future wage loss is a much more involved process.  Once again employment records and medical records will be relevant.  In addition, high school records, university records and your family history will be reviewed.  The Judge must consider how long you likely would have been able to work as well as how much money you likely would have earned but for the incident.  The Court must consider variables such as the likelihood of your early death, economic downturns and likelihood of another debilitating injury.

Non-pecuniary damages compensate a plaintiff for their pain, suffering, and loss of enjoyment of life up to the date of the trial and in the future. The essential principle derived from the jurisprudence is that an award for non-pecuniary damages must be fair and reasonable to both parties and should be measured by the adverse impact of the particular injuries on the individual plaintiff.  This valuation is completely up to the discretion of the Court. Awards vary a great deal depending on the type of injury and the type of person that was injured.

Costs of future care are awarded on the basis of what is reasonably necessary to promote the mental and physical health of the plaintiff having regard to the medical evidence.  To determine the appropriate award the Court must be satisfied that there is a medical justification for claims of future care and the claims must be reasonable.

Special damages cover a person’s reasonable out-of-pocket expenses they incurred as a result of an accident.  The expenses claimed must be limited to those expenses which are restorative rather than putting the injured person in a better position than before the accident.

In British Columbia, all of the above heads of damages are added together and paid out to the injured party as a lump sum.

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How to Change the Name of a Business?

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Change of Business Name

Approximately 30 years ago, you started a masonry business.  You decided to call this company “Smith’s Masonry Services”.  Business was good so you started to look at adding different business lines.  You found that there was a need for masonry in the assembly of fireplaces.  Things further evolve and you notice that there is a demand for the installation of the fireplaces.  As years pass on your firm is capable of installing fireplaces.  Business is booming, in fact there are so many requests for the installation of fireplaces, that your original masonry business is almost inactive.  Because of this change in business your company’s name may be somewhat misleading.

How does a business change their Company’s name?

In British Columbia, there are two steps.  The first step is to request a name approval.  This step is to ensure the public is not confused or misled by similar corporate names.  New corporate names must be approved by the Corporate Registry.  Before making application for the name approval, one should conduct an online search of the registered BC companies and organizations database on BC Online to ensure that new business name is not already taken.

The second step is file a change of corporate name.  In order to submit the application through Corporate Online you will need your incorporation number, company password and Customer Profile ID.  If you do not have a Customer Profile ID, you need to create one on Corporate Online before you can file the change of the company name.  Also, companies must be in good standing with all filings up-to-date before altering the company name.

As per the Government of British Columbia Website, these are the 3 most common reasons why names are not approved:

  1. Name is too similar to an existing corporate name within the same industry.
  2. Research was not conducted before applying to make sure the name wasn’t already in use.
  3. Name lacks a distinctive and/or descriptive element.

 

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Civil Resolution Tribunal

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The Civil Resolution Tribunal is designed to provide affordable access to justice in BC.  As stated in the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial”.

The Civil Resolution Tribunal has attempted to combat the access to justice problem by making the process cheaper, expedited, easier to understand and more navigable.  One of the more interesting facets of the Tribunal is that it is Canada’s first online tribunal.  The entire process from initiating a claim, negotiations and the final decision of the tribunal is done online.

The Tribunal started off as a forum for strata property disputes but has expanded into facilitating small claims disputes of $5,000.00 and less.  Interestingly, the Tribunal is going to expand further into Motor Vehicle Accidents and certain Societies Act and Cooperative Associations Act disputes.  Motor Vehicle Accident disputes are expected to begin being heard by the Tribunal in April of 2019 but there is no specified date yet for the Tribunal to start hearing issues related to disputes under the Societies Act and Cooperative Associations Act.  It is likely that the Tribunal will only hear matters related to Motor Vehicle Accidents that are fairly simple in nature with damages capped at around $50,000.00.

The Tribunal contemplates active participation by those who will actually end up being effected by the dispute, namely the plaintiff and defendant.  The Tribunal will only make a decision for the parties if the parties are unable to agree to a solution on their own.  The Tribunal is available 24 hours a day, seven days a week from a computer or mobile device that has an internet connection.

The Tribunal’s online dispute resolving program is ground-breaking, being the first of its kind in Canada.  It is likely that the jurisdiction of this Tribunal will continue to expand within BC once the public gains more confidence in the process.

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Family Law – What happens if I do not register my Family Law Agreement with the Court?

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While it is important to register any family law agreement with the Court to ensure that the agreement has the force of a Court Order, failing to file the agreement will not necessarily be detrimental to having the Court enforce the terms of the agreement as if the agreement was an Order of the Court.

In Smith v. Smith, 2018 BCSC 641, lawyers for the claimant and respondent were close to coming to an agreement between their clients.  Court proceedings were adjourned generally while the lawyers worked out the terms of the agreement, and both the claimant and respondent signed the draft copy of the Order several months later.  Unfortunately for the parties, the registry refused to file the agreement since it was “not in the proper form and it failed to address all of the property claims in the notice of family claim” (para. 13).

The claimant later attempted to have the written agreement declared a final Order by the Court.  The respondent sought to have the Order declared an interim Order, which would have given the Court the ability to vary the Order without a material change in the circumstances of the respondent, on the basis that the respondent thought the Order was an interim Order and that the respondent claimed she did not know the Order limited spousal support to a period of seven years.

The Honourable Madam Justice Murray wrote the following:

[20]        The order is entitled “Consent Order”. It is drafted in order form with the Supreme Court style of cause. It states clearly that it is before a Judge of the Court and that it is by consent. There is a line for signature by the Court. The respondent had counsel at the time of the settlement discussions and for approximately six weeks following during which terms were finalised. She does not dispute being involved via phone in the settlement discussions at the courthouse. She was clearly part of the negotiations after that session as she asked for and received material concessions from the claimant. After she released her counsel, she personally delivered to the claimant’s lawyer the order signed by her. She was undoubtedly aware that it was going to be filed with the Court.

[21]        The order is clear and easy to read.  The only reasonable inference to draw from the fact that she sought changes and eventually signed it, is that she read it.  The spousal support clause clearly specifies that support was to be for a period of seven years.

[22]        The order dealt with all outstanding matters between the parties, not just the matters that were to be reviewed by the Master that day.  That is inconsistent with it being an interim order.  There is nothing in the document that indicates that it is interim.

[23]        The respondent points to the passage that the parties must exchange their income tax information annually as an indication that this agreement was intended to be interim.  I disagree.  That is a standard clause in family orders.  The fact that an order is final does not preclude a party from bringing an application to vary if there is a material change in circumstance.

[24]        The respondent further argues that this is an agreement as opposed to an order.  Again it is entitled “Consent Order”, is drafted in order form with a line for a Judge’s signature and was intended to be filed in court.  The only rational conclusion is that the parties intended it to be an order of the court in full and final resolution of all matters in issue between them.

[25]        Accordingly, I find that the document in issue is a final order.

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 – Obtaining Interim Spousal Support

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When parties separate, one party may seek spousal support between when the issue of spousal support is first heard and the point at which the court makes its final decision (for example, when the Court makes a divorce order or makes final orders with respect to property division and support). This is known as “interim spousal support.”

The recent case of Piva v. Piva, 2018 BCSC 670 [“Piva”], illustrates the factors a Court will consider when deciding whether to award interim spousal support.

In Piva, the claimant was 50 years old and the respondent was 55 years old. The parties were married for 28 years.

The claimant applied for interim spousal support.

Master R. W. McDiarmid began the analysis using the legal test under section 15.2(4) of the Divorce Act:

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Master McDiarmid further stated that the Court must also consider the following factors:

  1. the applicant’s needs and the respondent’s ability to pay assume greater significance;
  2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
  3. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
  4. The courts should not unduly emphasize any one of the statutory considerations above others;
  5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
  6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
  7. Interim support should only be ordered where it can be said a prima faciecase for entitlement has been made out;
  8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

In Piva, the Respondent disclosed $183,688.45 in income for 2017 and the Master imputed income of $40,000.00 to the Claimant. The Master calculated the range of spousal support which could be paid by the Respondent to the Claimant based on the parties’ respective incomes and awarded the Claimant interim spousal support after considering the following fact:

  • the Claimant had exclusive occupancy of the former matrimonial home, and once the appropriate spousal support order was made, the Claimant would be responsible for making all of the payments associated with the house;
  • the Respondent’s Financial Statement set out expenditures of approximately $6,350.00 toward savings and debt payments. As well, $4,460.00 monthly was allocated toward income taxes which would be reduced substantially by a spousal support order [because spousal support is tax deductible to the payor and is taxable income to the recipient]; and
  • the Claimant remained in the family home with no mortgage payments to be made.

The Master awarded interim spousal support payable by the respondent to the claimant in the amount of $5,000.00 per month.

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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