During a proceeding, sometimes issues may arise that cannot be resolved by negotiation or by consent and must be resolved by an interlocutory application.

Usually your lawyer will begin by telling you what orders she/he would like the court to make. There are many considerations to think about before preparing your documents such as the timing and form of your application, applicable Rules and Court authority, relevant and attainable relief, venue, supporting persuasive evidence and service. No matter what your role is in getting the file ready for a chambers application, you need to consider one or all of these considerations so that the matter can be before the court in an expeditious and cost efficient manner.

First, you must decide if a Notice of Motion or a Petition will bring the application to the Court. Either document notifies the court and other parties of the relief being sought. If you already have an existing action, you will prepare a Notice of Motion in Form 55. Rule 10(1) sets out the types of matters that can be started by a Petition, but generally if you are seeking a final order with undisputed facts, you could consider the use of a Petition in Form 3.

Once the appropriate relief is determined by discussing this with the lawyer or reviewing the file, is to be listed in numbered paragraphs in the body of your motion. The relief should be listed in order of importance or urgency with substantive issues first, followed by procedural ones.

Take the time to draft your motion correctly, as you can later use the same clauses in your draft order. You can ask for as many claims of relief as you want, but the court will not grant relief that is not included in your materials. If the terms of relief in the motion are particularly long or complex, you can attach a draft order to your motion specifying that the relief sought is “in the form attached”.

It is important to consider whether the court has authority under BC Laws to grant the relief. For example, the court has no authority under the Federal Income Tax Act to order the CCRA to produce a party’s income tax return. Careful consideration must be used when corporate entities are named, as you must ascertain their proper legal name. The court can generally only make an order against a “person” within British Columbia.

Spend some time reading the Rules of Court under which you are bringing the application. The relevant Rules/enactments must be specified in the motion because if they are not, the court will not have the authority to grant the additional relief. If you cannot find a specific rule or enactment that applies to your terms, you must rely on the inherent jurisdiction of the court.

You also must consider whether a judge or a master can hear the application. This is also set out in the preamble of your motion.

You need to determine if your application can be brought without notice or if notice is required and, if so, to which parties. Sometimes short leave is required in urgent applications that require little or no notice to other parties. If notice is required, you need to think about which parties of record, counsel and non-parties must be served. You must serve any party who may be affected by the relief sought. All parties who require service must be listed on the front page of the motion. If a party is not served with the application, you run a risk of having the hearing dismissed or adjourned by the court.

You can file your motion in any registry within the same judicial district without the consent of the respondents. The Vancouver/Westminster Supreme Court Judicial District includes the registries located in Vancouver, New Westminster, Powell River and Chilliwack, so you can consider which registry will be most convenient for all parties.

You must also list the evidence that will be considered at the hearing in the motion. The application must be supported by at least one affidavit. Consider who would be the best person to swear an affidavit to support the relief. You must list the affidavits and any other material (such as pleadings) in numbered paragraphs in the motion. An affidavit previously made and filed in the proceeding may be used in support of a new notice of motion (Rule 44(4)). It is a good idea to list them, together with the new affidavits, in your motion (Rule 44(5)).

Consider a realistic time estimate for the court to hear your case and the case of anyone else who intends to reply. Include some extra time for the judge or master to ask any questions and give a ruling. If your time estimate is over 30 minutes, you will need to prepare additional documents and consider extra deadlines and you must first obtain a hearing date directly from the court.

Finally, you must consider the timing of your application. If there is a specific date you need to have the order granted by, you need to calculate in advance the date your application materials should be served on the parties and also allow for the appropriate time for the respondents to deliver their reply.

Once you consider the above issues, you will be able to prepare a motion with ease.

In my last blog, which introduced the coming changes to discovery practice under the new Supreme Court Civil Rules, my focus was document production. In Karen Redmond’s recent blog, she discussed the possible negative consequences of new restrictions to be placed on the use of written interrogatories.

The other key tool in the discovery process is the oral examination, which is my focus today.

According to the Civil Justice Reform Working Group (CJRWG), feedback from litigants and other members of the public brought to light that our civil justice system was perceived as “too expensive, too complex and too slow.” The CJRWG concluded that excessive oral examinations contribute to these problems, primarily because there are no time limits imposed on the examiner. Theoretically, a person could be subjected to several days of questioning, with much of that ‘evidence’ never to see the light of day at trial. Not surprisingly then, a lengthy oral examination process can add dramatically to the cost of litigation without necessarily advancing resolution of the dispute. To curb this, under new Rule 7-2 the total duration that a person can be examined is limited to seven hours, unless that person consents. But in the case of someone who is unresponsive, evasive, or gives lengthy, irrelevant answers ( which in my experience happens more often than you might expect), the examiner may have no option but to obtain a court order to extend the time in which to question that person. That in itself would compound costs and delay the process.

A good move in my view, again with the objective of limiting the duration of the oral examination, Rules 7-2 (23) and (24) formalize a common practice that exists now. Quite often the person examined may not know off hand the answers to some of the questions that arise in the examination, such as names and addresses, or have documents in hand that have relevance to the case, but can certainly gather that information or documentation given the time to do so. Instead of adjourning and rescheduling the examination for continuation at a later date, the examiner can request, by letter, that certain questions be answered, in turn, by letter. Those questions and their responses are deemed to be as if given under oath in the examination itself.

I was struck today by something that seemed inherently unfair, and I was reminded of an old saying, “all’s fair in love and war.”

Consider this: you and your husband have been having a difficult time in your relationship. You are writing about it in your diary, a place where you have kept your deepest darkest secrets since you were a teenager. Surely, your diary is private and no one would read it? Right? And if they did, it would be wrong wouldn’t it? They certainly couldn’t use it against you because its private, and you never intended that anyone would read it, right? Sadly, the answer is: not necessarily, in fact, in many instances, your diary entries can be used against you when you are involved in family law proceedings.

Mathews v. Mathews, 2007 BCSC 1825 considered this issue in deciding whether the wife’s diary could be used as evidence to determine her intentions in seeking her husband’s permission to relocate from Australia to Canada. The court found that the entries had probative value in that they were relevant to a determination of her intent. They were found not to be prejudicial to the wife because their origin could be determined, a complete diary could be produced to give context to the entries, and they had not been manipulated. The evidence was not prejudicial to the process, the court said, because it was possible that the parties could copy and read the diary, the cost was not prohibitive to the process. In a minor concession to the wife the court held that it did not approve of the invasion of the wife’s privacy, however, the finding was that it was not an illegal act (such as an illegal tape recording) and it was done in the husbands emotional state whilst he felt his relationship was about to break apart.

In the end result the diaries were admitted into evidence with the court finding that the reputation of the administration of justice would suffer more if the entries were excluded.

In matrimonial law, nothing is sacred. Take your teenage diaries, give them a final read and toss them in the woodstove if you have any doubts.

Stay tuned to this site for: Can secretly obtained tape recordings be used in family law cases?

You may be in the process of topping up your tax-free savings account or TFSA with the additional $5,000 contribution permitted for 2010. However, have you designated a beneficiary on your TFSA account? Designating a beneficiary is a smart thing to do in most circumstances to potentially reduce income taxes and probate fees payable upon your death. Probate fees are generally payable on all assets that form part of your estate at death other than items with named beneficiaries such as life insurance policies, RRSPs and TFSAs.

TFSAs
TFSAs were brought into effect by the federal government in 2009 and provide that any income earned on the funds in the account is tax free, even when it is withdrawn from the account. As of 2010, the most you can contribute to your account without a penalty is $10,000, but the plan allows for up to an additional $5,000 contribution for each successive year. At the moment your TFSA may seem like a small amount of money to worry about upon your death, but if you continue to contribute each year, this may soon be a substantial asset in your portfolio.

Here is what to think about when considering a beneficiary for your TFSA:

Designating a “Successor Holder” (for spouses)
If you decide to designate a beneficiary, there are two choices. The first is to designate a “successor holder”. This can only be done in favour of a spouse (or common law partner). This type of designation allows your spouse to take over the TFSA upon your death and preserves the ability of the funds in the TFSA to earn income tax-free. The spouse cannot make further contributions to your TFSA, but can either maintain it and designate a new beneficiary, or transfer it over to his or her own TFSA without affecting his or her own contribution room. This will also prevent your estate from being required to pay probate fees on the TFSA funds (currently approximately 1.4% in British Columbia). This is normally the best choice if you have a spouse.

Designating a “Designated Beneficiary”
The second choice is to provide for a “designated beneficiary” such as a child or sibling or any other person. This type of designation allows the person named to receive the proceeds of your TFSA (either in cash or in kind) upon your death, but the TFSA itself will cease to exist. This designation does not preserve the tax-free status of the TFSA, other than for income earned prior to your death. Income earned in the TFSA after the date of death will be taxable to the beneficiary. However, making the designation will prevent your estate from paying probate fees on the value of the TFSA.

No Beneficiary Designation
The third option is to refrain from providing for a “successor holder” or “designated beneficiary”. This will result in the proceeds of the TFSA being paid out to the beneficiaries of your estate. There may be reasons why you wish the TFSA proceeds to be paid out pursuant to the terms of your Will, such as if you have a trust in the Will for minor children or disabled beneficiaries. In that case, you may not want the TFSA funds to go directly to the beneficiary pursuant to the designation, but may rather want to ensure you have made provision for a trust in your Will and have the funds be paid into that trust. You should consult a lawyer with respect to this type of planning to ensure that it is right for your circumstances. Under this option, probate fees will be payable on the funds from the TFSA, but this may be outweighed by the benefits of having the funds go into the trust where they would be managed appropriately for a minor or other beneficiary. This will also prevent the involvement of the Public Guardian and Trustee, who would need to step in to hold funds in trust for any minor or disabled beneficiary who inherits funds directly from a TFSA.

More information on TFSAs, including how to make a designation, is available at the federal government website: http://www.tfsa.gc.ca/thingstoknow-eng.html or from your financial institution.

I had contemplated (and really did plan on) tackling the ins and outs of the pending new Supreme Court Rules dealing with oral examinations, but on this Christmas Eve Day, the topic just doesn’t feel ‘topical’. Instead I came across an article from yesterday’s Edmonton Journal with the headline, “Family court crowded at Christmas: Parents look to sort out holiday schedules,” that had resonance. As Alexandra Zabjek writes, “It is an annual rush. Every year, family courts experience a surge of cases in the days leading up to the holidays.” I know that unfortunate story. As a family law paralegal, what I often fear about the Christmas Season is facing that ‘annual rush’, the possibility of moms and dads trying to secure Christmas access. Despite the outcomes of such disputes, feelings of disappointment, guilt and loss are felt inevitably by parents and children alike. The old adage that “no one wins” seems never so true.

Whether we spend more or less than last year on gifts for family and friends is less significant than the expectation that the holiday season will bring family and friends closer together. We have been inculcated with the message that Christmas is all about peace, happiness and love. Sadly, that expectation creates heightened challenges and distress for the separated or divorced family, especially if arrangements for access over the holidays were not made well in advance. Even when parents have an existing access agreement or order in place, that is no guarantee disputes between them will not materialize, perhaps because the children themselves would rather spend Christmas Day with the ‘other parent’.

I have hope that this holiday season will be a quiet one – so far so good. If I could make it so for everyone, of course I most certainly would.

So should I close off by wishing all of you a Happy, Peaceful Holiday Season? Sure, I just can’t help myself!

Mediation is particularly well-suited for estate disputes because it provides for the consideration of factors outside the adversarial arena. Very often in estate disputes there is a multiplicity of interests and motivations.  Mediation provides a forum to not only identify those interests and motivations, but to respond to them.  When a dispute arises in the family context, mediation allows for consideration of the factors that might contribute to the dispute or interfere with its resolution.  For example, family dynamics, suspicion of abuse or undue influence, blended families with opposing views on testamentary entitlement, and interpretation of the testator’s, donor’s or settlor’s wishes can be more effectively considered in the mediation context than during the course of litigation.

Where family is involved, there is often a natural reticence towards litigation.  While the disputants want the opportunity to settle their disputes behind closed doors, they often need the assistance of a neutral third party to reach an appropriate resolution.  Mediation allows for the leveling of the playing field because each party has a voice and can participate in the process.  Each party has the right to have counsel present and the ability to influence the discussion and eventual outcome.  If there is a desire to repair relationships, mediation provides an opportunity for this reparation.  Parties can more readily move from a position-based stance to an interest-based stance.  It is possible that, once the discussion moves to one of interest, the parties will discover that they have common interests that can be brought to bear in resolving the dispute.

It is interesting to note that of the 31 millions people currently residing in Canada, 12.5% (3.9 million) are age 65 or older.  By 2040, it is predicted that 25% of Canadians will be over 65.  While there are currently only 150,000 people in Canada over 90 years of age, by 2026, there will be 400,000.  We are living longer and accumulating greater wealth.  This gives rise to the potential for even more disputes arising on either incapacity or death.  Mediation will be an important tool in resolving some of these disputes, including, but not limited to:

• challenges to the validity of a will (e.g. , preparation, execution or interpretation of a will, capacity to make a will, holograph wills, and will kits);
• personal injury claims (where the incapable or deceased person is injured or causes a third party injury);
• discrimination claims (including age and disability discrimination, and accessibility rights);
• elder abuse claims (including physical, psychological and financial claims, and civil and criminal remedies);
• dependants’ relief claims (where the deceased or incapable person is either the dependant or the provider);
• parental support claims (where the parent is in need and the child is capable of providing assistance);
• variation of trusts (the terms of any proposed variation, subject to court approval);
• grandparent access claims;
• long-term care issues (including consent to treatment and admission);
• power of attorney disputes (including capacity, and use and abuse issues);
• guardianship plans;
• access to health care issues; and
• housing issues (including tenancy issues, house-sharing arrangements and assisted living).

Find out more about our mediation services here.

The new rules of civil procedure in British Columbia will come into effect on July 1, 2010.   One of the changes will be to restrict the use of written interrogatories.

Under the old rules, Rule 29 allowed any party to serve questions in written form on another party to the lawsuit. This is a useful tool in matrimonial litigation, especially where you have uncooperative former spouses who refuse to provide documents or answer questions through the usual course of letters to opposing counsel.  Under Rule 29, the party asked to answer the interrogatories could object to specific questions, or bring an application to court to strike the interrogatories for example, but generally speaking, asking questions through Interrogatories is an effective means of gathering information and evidence in family law matters.

By submitting questions concerning a party’s financial records and making requests for documents within the interrogatory, the other party has an opportunity to go through his or her records, and review the questions and answers with his or her lawyer, which ensures accuracy of the response, and allows the asking party to rely on the answer as it forms part of the written evidence.   These written answers are much more useful and inexpensive to obtain, than setting the matter for hearing and asking the same questions during oral examinations, where the other party often does not know the answers off-the-top of his or her head or will not answer.  In written form and guided by counsel, more often than not, answers are provided within the timelines.

Under the new Rule 7-3, a party who wishes to examine another by written interrogatories must first get the other party’s agreement, or they have to apply to court and ask the court to allow the interrogatories.

This change in the Rules is unfortunate, and in my view, will have the opposite effect of what is intended. Instead of reducing the costs of family law litigation, in most cases it will increase the costs, since under the new rules, if the former spouse does not agree to answer interrogatories, you may be able to get a court order allowing interrogatories but it is an extra step, which adds to the expense for the client.

In the weeks to come, I will explore key aspects of the new Supreme Court Civil and Family Rules that will come into effect in British Columbia on July 1, 2010. The current rules governing the discovery process, including the production of documents and oral examinations, were among those targeted for revision.

Existing Rule 26 outlines the process by which a party can discover and inspect documents. A party can prepare a Demand for Discovery of Documents (often combined with a Notice to Produce) that, once delivered to another party, starts the clock ticking, requiring the recipient to prepare and deliver a list of documents within 21 days (in practice a strict deadline is often neither observed nor enforced). One difference found in the new Civil Rules, which falls within Part 7, “Procedures for Ascertaining Facts,” is the provision that each party must prepare and serve on all other parties of record a list within 35 days at the close of the pleading period, thereby eliminating the need for a formal demand.

Of greater significance, the new rule attempts to narrow the scope of document production by stipulating that the list must set out all documents that can prove or disprove a material fact at trial and all others that the party intends to use at trial. Compare this to our current rule which requires a party to list the documents “relating to every matter in question in the action.” How can relevance be assessed in this context? In practice, the test for discovery has been the 19th century Peruvian Guano case (The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Co. (1882), 11 Q.B.D. 55). Under that test, the scope of possibly relevant documents is so broad that what can or should be disclosed is potentially limitless. The new Civil Rule 7-1 reflects the conclusion of the Civil Justice Reform Working Group that adherence to that test is no longer viable given the greater complexity of modern litigation and the prevalence and proliferation of electronic data. In the absence of a new standard for discovery, existing practices have become a barrier to resolving disputes in a cost-effective and timely manner. Yet only time will tell whether the intent of the new rule will effect tangible change to current litigation practices.

The broad scope given to the question of relevance has also impacted practices governing oral discovery. Next time, I will look at how the new rules address the use of interrogatories and examinations for discovery.

As with many areas of law, there are myths surrounding divorce and separation, which cause confusion, and leave non-lawyers feeling like they have more questions than answers.  Confusion around rights and responsibilities, when coupled with an imbalance in a personal relationship can have a disastrous result.  Too often it is the person with the most money, who can hire the most expensive lawyer who “wins.”

We strongly recommend that you seek legal advice prior to entering into any agreement, whether it is a family law agreement or any other type of agreement. If you have been presented with a document and you do not understand your rights, you need to get legal advice.   An hour on the phone with a qualified lawyer is well worth the cost and can save you money and the aggravation of dealing with a poorly drafted agreement that does not protect you or your rights.

Top ten myths in family law

These are clearly over simplified and you should seek legal advice if you require further information.

Read more….

What is a Mutual Will?

The starting point for any discussion on wills is that a person may always revoke his or her Will. This may even happen unintentionally, as each time you marry, law dictates that your Will is revoked.

A mutual Will is a binding agreement that parties will dispose of property by a Will in a certain manner, and that they will not change their Wills.

What is a Mutual Wills Agreement?

A Mutual Wills Agreement is a written agreement between two spouses to execute Wills and to not change or revoke their Will without notice to the other spouse. This is a contract at law, and there must be evidence of this. Once made and one of the parties dies, the agreement become irrevocable.

Often the spouses prepare mirror Wills and at the same time sign a mutual wills agreement containing the appropriate language.

Why would we want mutual wills?

These Wills are often considered when one spouse (or both) has concerns or fears that they may die leaving assets to their spouse, and the surviving spouse may subsequently remarry. The newly married spouse may then leave their assets to their new partner, or their new partner’s children, leaving the testator’s children or intended beneficiaries inadequately provided for. A mutual wills agreement can provide peace of mind that this situation has been avoided, as the courts will give effect to the agreement.

Can I revoke the agreement?

Either party to the agreement may revoke the agreement during their lifetime, with due notice to the other party. However, once the first spouse dies, and the second spouse receives the benefits of the first spouses’ Will, then the agreement becomes irrevocable. The agreement will also become irrevocable when one of the living spouses is unable to alter their Will due to incapacity.

What happens if the surviving spouse does change their Will?

A mutual wills agreement operates to create a trust in favour of the beneficiaries named in the Will. The trust becomes “locked-in” when the first of the spouses dies. If the surviving spouse later changes their Will and does not adhere to the terms of the mutual Will, the beneficiaries then have an action for a declaration of a constructive trust.

What this permits the Court to say is that the second spouse broke an agreement, and in fairness they cannot change the agreed upon distribution of the assets.

Alternative to Mutual Wills

Another method that may accomplish this goal would be to create a qualifying spousal trust.

Where do I find out more information on mutual Wills?

As usual, the law on mutual Wills, their creation, operation, and enforcement, is more complicated than can be addressed in a short period of time. Often people think that their estate is not large and does not require attention, or that their Will is a simple matter. This is a big mistake, especially if you wish to provide for several beneficiaries. Estate litigation, litigation over your assets after you have passed on, is very destructive to your family who remain, as well as extremely costly. It can be avoided with a well thought-out estate plan. It is important to realize, there are always good estate planning options.

Please see an estate planning lawyer, and ask the questions you have on your mind.

If you would like to know more about Estate Planning, including a Mutual Wills Agreement, please do not hesitate to contact Steve Andrea at Heritage Law.