Boaters and Duty to Rescue – Personal Injuries, Legal Liability

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With summer in full swing, many people find themselves enjoying time on the water in boats.  Although most boating endeavours are fun filled family or friend adventures, situations can arise in which legal liability for personal injuries can ensue.  For example, what is the liability of the boat captain when one of their invited guests accidentally falls in to the water and is injured or dies?  The Courts have held that a boat captain owes a duty to take reasonable care to rescue a passenger who falls overboard [Horsley v. MacLaren [1972] S.C.R. 441].

The boat captain is expected to perform a rescue attempt that would be reasonable under the circumstance.  Boat captains are expected to be aware of the recommended rescue procedure for a passenger that has fallen overboard but are not expected to execute the rescue to a standard of perfection.

The standard of reasonable care exercised by the boat captain must, as stated in Horsley, be measured in light of the immediate and pressing circumstance.  As long as the boat captain acted reasonably in the circumstance the boat captain will be relieved of liability for the passenger’s injuries or death.

With that established, can legal liability arise if one of the other passengers invited onto the boat is injured or killed while attempting a rescue of a passenger who has accidently fallen overboard?  If it can be established that the boat captain has by his or her fault created a situation of peril, they must answer to any person who attempts to rescue the passenger who has accidently fallen overboard.  If the rescuer is injured or killed as a result of this attempted rescue, they can recover damages from the person that created the situation of peril.

It is important in this circumstance to delineate between the situations of peril that the boat captain has created versus the general situation of peril that comes with a person accidently falling overboard.  The boat captain would only be held accountable to the rescuer for injuries or death if it could be established that the boat captain failed to undertake a rescue attempt or did so in a negligent manner.  In other words, the liability of the boat captain to the rescuer stems from the creation of a new situation of peril created through the boat captain’s negligent rescue attempt of the passenger who has accidently fallen overboard.

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

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Squatters Rights in British Columbia – Estate Litigation

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Squatters Rights in British Columbia

You find out that you are the Executor of the Estate of your Uncle John who lived in British Columbia.  Uncle John owned a vacant parcel of land in the interior.  Unfortunately, when you get to the property to inspect it, you discover that squatters are living on the property. The squatters say that they have been on the property since 1995. You want to know the Estate’s rights to the land and whether the squatters have any rights.

The law relating to squatter’s rights is titled “adverse possession”.  Squatter’s rights allows an individual to gain possession of land that is not actually owned by that individual.

In some provinces, squatters can acquire rights if they can show that they continuously used the land for a prescribed period (as may be set out in provincial legislation), that the squatters used the land in a way that is contrary to the true land owners intended use of the land, and that the true land owner was dispossessed of the land.

The good news for the Estate is that in British Columbia it is no longer possible to acquire land through adverse possession by virtue of section 28 of the British Columbia Limitations Act (unless the right to that land by adverse possession existed before July 1, 1975).

In other words unless the squatters could establish that they were in adverse possession before July 1, 1975, they have no rights to the Estate property.

Here, the squatters were in possession only since 1995 so they have no rights to the property.

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

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Child Support – Family Law, Separation, Divorce

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My Partner and I are Separating, Do I Need to Pay Child Support?

Introduction

A parent has an obligation to help financially support his or her children. When two people who have had a child together separate, there is a responsibility to pay child support regardless of whether the parents were married. A step-parent may also be responsible for paying child support. Although a parent will generally be responsible for paying child support, there are a number of factors that may affect how much you have to pay and for how long you have to pay.

How Much Child Support will I have to Pay?

There are guidelines that generally determine how much child support you will have to pay. These guidelines are called the Federal Child Support Guidelines. The amount you will have to pay depends on how much money you make and how many children you have. In addition to the basic amount that the Guidelines set out, you may also be responsible for a portion of other special expenses, such as daycare or the cost of braces.

It is possible that you will have to pay an amount that is different than the amount set out in the Guidelines. For example, a court may order you to pay an amount that it decides is fair in the circumstances. It is also possible to agree with the other parent to pay a certain amount of child support. This amount must be reasonable as a court will change the amount if it determines that reasonable arrangements have not been made for the support of the child.

Step-parents

Although your financial obligation may be different than the amount set out in the Guidelines, if you are a step-parent, you may also have a responsibility to pay child support. If you are a step parent, whether you have to pay child support may depend on the legislation. If you were married, you may proceed under the Divorce Act. Under the Divorce Act, you will likely be responsible to pay child support if you lived with the child and behaved like a parent towards the child.

Under the Family Law Act, you will be responsible for paying child support if you are a legal spouse of the child’s parent and you helped support the child for at least one year. You will be a spouse of the child’s parent if you were married or if you lived in a marriage-like relationship with the child’s parent for a continuous period of two years or if you had a child together. Under the Family Law Act, you will also only be responsible for child support if a court proceeding is started within one year of the last time you providing support for the child. Under the Family Law Act, a step-parent’s responsibility to pay child support is secondary to other parents or guardians and may depend on several factors, including how long the step-parent lived with the child.

How Long Do I have to Pay Child Support?

In most cases, a parent will be responsible to pay child support at least until the child reaches the age of 19. A parent’s obligation to pay child support may continue after the child reaches 19 if that child still relies on his or her parents due to illness or disability, or because he or she is going to school full-time.

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

 

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Challenging a Will? Estate Litigation

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If you are a beneficiary or an executor under a Will, you may have to deal with a Will that is being challenged or, if you are a beneficiary or a potential beneficiary, you may be in a position to challenge a Will. A beneficiary or a potential beneficiary may challenge a Will where he or she claims that the Will is invalid. There are a number of factors that must be met in order for a Will to be valid, the absence of which will leave a Will vulnerable to a challenge.

Legal Requirements

A Will may be invalid if the will-maker did not satisfy the formal legal requirements. For example, in order for a Will to be valid, generally, two people must witness the will-maker’s signature. However, in certain cases, even if a Will does not meet the formal requirements, a court may determine that the Will is still valid.

Mental Capacity

A person may also challenge a Will on the grounds that it is invalid if, when the will-maker made the Will, he or she did not have the required mental capacity to make a Will. In order to have the required mental capacity, the will-maker must understand what he or she is doing and must not be suffering from any disorder or illness that affects mental capacity. For example, a person will not have the required mental capacity to make a Will if he or she is suffering from dementia when he or she makes the Will.

Knowledge and Approval of the Will’s Contents

Although a person may have the mental capacity to make a Will, the Will may still fail to reflect the will-maker’s wishes. A will-maker must understand what the Will is intending to do such that it reflects his or her true intentions. Additionally, a Will may not meet the requirement that the will-maker knows and approves of the contents of a Will if someone else improperly influenced the will-maker. For example, a person who threatens to stop taking care of a person unless the will-maker leaves him or her something in the Will has improperly influenced the will-maker.

What Happens if the Will is Successfully Challenged?

If a court finds a Will to be invalid, the court may look to a previous Will to determine how the deceased’s estate will be distributed. If there is no previous Will that is valid, the estate will be distributed according to the law of intestacy. Intestacy means that the deceased’s family members will inherit from the deceased based on the order set out in the British Columbia Wills, Estates and Succession Act.

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

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Trusts & Estate Law – Undue Influence in the Context of Wills

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As people get older, they can start to lose their ability to think clearly. This can have wide ranging effects, including an inability to properly understand or communicate how they want to dispose of their property when they die. Unfortunately, there are those that recognize this weakness and attempt to take advantage of it. A particularly insidious example of this when someone attempts to improperly influence an elderly person’s final wishes regarding the disposition of their estate.

For example, consider a relatively common situation where a parent requires assistance with living on their own or their personal care. You might notice that they tend to forget things and are having trouble running their finances. To try and keep them comfortable, you hire a caregiver. Over the years, your parent becomes quite dependent on the caregiver. The caregiver begins to help with almost every aspect of your parent’s day-to-day living, including becoming involved in their financial matters. Ultimately, the caregiver ends up living with your parent for a few months before their death. After their death, you discover that unbeknownst to you, your parent has transferred all of their assets into the name of the caregiver. You believe that your parent did not intend to give all their property away to the caregiver.

Did the caregiver improperly influence your parent to give their property away?

When there are suspicious circumstances as to whether someone has overwhelmed the will of a will-maker (called a “Testator”) to give property away, courts can consider whether someone unduly influenced the Testator. If the court finds that the Testator was unduly influenced, the court has the power to reverse the property transfer.

When determining whether the free will of a Testator was dominated by another individual, the court will review all the circumstances surrounding the relationship between the two parties. To do this, the court will analyze whether a person was in the position to dominate the will of the deceased. The court would have to undertake a careful analysis of the situation, attempting to fully appreciate the relationship between the caregiver and the Testator. The court will review medical evidence from the Testator’s doctors, testimony from the family, and also consider whether the deceased received legal counsel in advance of disposing of their property.

If you have concerns regarding the disposition of your parent’s estate it is vital to seek legal counsel without delay.

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Should You Sue? – Personal Injury

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There are a number of considerations in deciding whether it is in your best interest to sue. For example, perhaps you recently attended a climbing gym for the first time. Before allowing you to use the climbing wall, the receptionist required you to read over and sign the gym’s liability waiver. You scan through the waiver, and sign your name at the bottom. After climbing for half an hour or so, you fall off the wall. Unfortunately, the safety rope provided by the gym breaks. You fall ten feet onto your back. You are very sore the next day, and consequently have difficulty lifting some of the heavier items at work.

Should you sue the gym for negligence?

There are numerous matters to be considered before deciding that it is in your best interest to sue the gym. For example, it would be vital to determine whether the waiver you signed with the climbing gym covers this sort of accident. Without review of that specific waiver, it is impossible to tell whether the climbing gym would be protected from litigation. It could very well be the case that the waiver that you signed does preclude you from advancing any law suit against the gym.

Second, assuming that the waiver does not prevent you from suing, you have to determine the type and amount of damages you might be able to claim. These damages might include missed wages from work, medical treatment expenses or money for your pain and suffering. If your potential damages are not significant, it might not be financially viable for you to pursue a law suit.

Third, you must consider what level of court is appropriate for your potential action. For example, if your damages are less than $25,000.00 you should probably advance your claim in Small Claims Court (Provincial Court). If your damages are estimated to exceed $25,000.00 then you would probably bring your case in Supreme Court. Without a careful review of the situation, it is difficult to know what damages might be available in your situation, and consequently the most appropriate Court to pursue your damages.

Before deciding to sue, there are a number of important strategic and legal decisions to make. The considerations reviewed above are only a few of the elements that must be considered, and the factors change with every different circumstance. If you find yourself in a situation where litigation could be an option, contact us to review your circumstances.

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How Long Do You Have To File Your Law Suit?

If you have had an accident or encountered some other issue that might require legal action, it is important that you seek legal advice as soon as possible. In British Columbia, the limitation period for starting an action is generally 2 years. The BC Limitations Act [SBC 2012] Chapter 13 (the “Act”) states:

Basic limitation period

(1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered.

The result of this section is that, subject to a few exceptions (e.g. minors or people with diminished capabilities), if you do not file a lawsuit within 2 years, you may be prevented from bringing a legal claim against the other party.

It can be difficult to determine when this 2 year period begins to run. Generally, again with a few exceptions, this 2 year period begins to run when the damage is discovered. The Act states

Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following:

(a) that injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or contributed to by an act or omission;

(c) that the act or omission was that of the person against whom the claim is or may be made;

(d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

Given that the limitation period begins to run from when the action was discovered or reasonably ought to have been discovered, it can be very difficult to determine exactly when a limitation period begins to run. Due to the fact that it is not always apparent when the limitation period begins to run on an action, we recommend that you seek legal counsel as soon as possible.

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My Rented Suite is Damaged – Do I Have to Pay Rent? Residential Tenancy Act

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You have signed a one-year lease for a basement suite. The top floor is also rented out by the same landlord to another tenant. You come home from work to find that water has come through the floor above and ruined a number of your personal items. Extensive work is required to return the suite to livable standards. The landlord begins this work by undertaking extensive repairs on the walls and ceiling. As a result, you cannot live in the suite. You move in with a friend and wait for the repairs to be completed. It is now the first of the month. Your landlord is asking for the rent.

Are you legally obligated to pay rent while you are not living in the suite?

As a renter, you are bound by the BC Residential Tenancy Act (the “Act”).  There are only 5 specific instances where a Tenant can refuse to pay the full amount of rent. A Tenant can refuse to pay the full amount of rent only when:

  • An Arbitration Board has given an order to reduce the rent;
  • The tenant has followed the proper procedure to claim money spent on emergency repairs;
  • The landlord has illegally increased the rent;
  • The landlord has overcharged for a pet or security deposit; or
  • The tenant and the landlord have agreed in writing to reduce the rent due to one of the other sections of the Act (e.g. ending the tenancy early).

Since your situation does not fall into one of the 5 categories, it appears that you would have to pay rent to your landlord. If you do not pay rent, the landlord is entitled to file a file a Notice which enables them to end the tenancy after 10 days. The landlord is able to file this notice the day after rent is due.

While it appears that you have to pay rent, there might be other options available to you. For example, 1 option is that you could file a claim for dispute resolution under the Act and seek a rent reduction.

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

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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.”

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When can a Court vary a Will? – Estate Litigation

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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.

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