I am Cheri Martin and I am 24 years old. I have a Bachelor of Arts degree with a major in Criminology from Simon Fraser University, and I am currently working towards my diploma in the Paralegal Program at Capilano University. I absolutely love to travel and I have had the opportunity to visit countries such as China, Germany, and France. I have worked part-time as a server throughout my post-secondary career and it has certainly been a great experience. I have become quite efficient at managing my time between school and work, but aside from that I have also met many people who have become good friends. I think that Capilano University is a fantastic school. This is the second time I have been a student there since I also attended Capilano in the University Transfer program upon my graduation from high school. Although it was Capilano College then, it still had the same welcoming atmosphere and a great selection of courses to take. The professors that we have in the Paralegal Program are excellent and they clearly have a passion for what they teach. I feel that the coursework is challenging but practical and it gives us a great idea of the kind of work we will be doing on a daily basis once we are employed as paralegals. With one year of the program left to complete, I am still uncertain about what field of law I will end up working in. At this point, I have really enjoyed and excelled in the class where we learned about the law regarding wills and estates. I also liked the courses that covered employment law and family law. Being the recipient of the Heritage Law Award of Excellence is a great honour and it is something that I am truly thankful for. I am incredibly excited about my professional future and I look forward to working as a paralegal at a great firm where I can put the lessons and skills I have learned at Capilano University to good use.

The award is in recognition of “demonstrating and promoting work life balance in the legal profession.”  The award was presented today at the CBABC Work Life Balance Section meeting at the Vancouver Club.  The award was presented by Justice Peter Leask.  The incoming CBABC President, Stephen McPhee, President, James Bond, and Executive Director, Caroline Nevin, were in attendance, as was Chief Justice Bauman.

Continuing Legal Education BC, the award winner in the organization category, generously produced videos for the presentations.

Nicole’s video

http://66.135.33.137/apps/foev9nzmp7zkl5uiq1sa/player_20100622122955/player.html

CLEBC Video

http://66.135.33.137/apps/foev9nzmp7zkl5uiq1sa/player_20100622124045/player.html

I recently attended the 2010 World Summit & Symposium on Elder Mediation and presented on the topics of ethics and planning for incapacity.

I enclose my presentation slides on both topics:

It is estimated that there are currently 3.7 million Canadians over the age of 65. With the leading edge of the “baby boomers” poised to hit retirement in 2011, seniors will soon make up close to a quarter of the population. This demographic shift will have a profound effect on our society socially and economically.

The potential for issues and disputes will increase as larger numbers of older adults face life transitions and issues of incapacity, health care, housing, finances, family and relationship concerns, possible abuse and neglect, estate planning, end of life decisions and other significant concerns. Elder mediation is a potential solution to assist seniors, their families and other stakeholders facing a maze of options and tough decisions.

What is Elder Mediation?

The Elder Mediation Canada web site defines elder mediation as follows:

Elder mediation is a cooperative process in which a professionally trained elder mediator helps facilitate discussions that assist people in addressing the myriad of changes and stresses that often occurs throughout the family life cycle. Elder mediation typically involves larger numbers of participants including older people, family members, friends and others who are willing to give support. Depending on the situation it is not uncommon to include paid caregivers, hospital staff, nursing home and or community care representatives, physicians and other professionals.

Over the past 20 years mediation with age-related issues has been emerging as a distinct specialty in the field. Elder Mediation is now being recognized internationally as an important step in the continuum of care – promoting wellness, developing prevention strategies and enhancing quality of life. The focus is on addressing concerns and issues while maintaining and strengthening the myriad of relationships critical to the well-being of the older person.

This is an article I wrote for the Law Practice magazine March/April 2010 issue in advance of the upcoming ABA Techshow.

Working Virtually: High-Productivity Tips for Traveling Lawyers

I will presenting on virtual law firms and technology for the travelling lawyer.  And I’m looking forward to visiting Chicago for the first time.  I will live tweet the conference at @ngartonjones.

Date: Friday, May 14, 2010
Time: 8:30 am to 1:30 pm

I am excited to be able to participate in this year’s CBA BC Branch Women Lawyers Forum Education Day event. Along with Elizabeth Watson and Stacey Handley, I will participate on a leadership panel which will be led by Marion McAdam of Fourth Wall Project Management & Consulting. Marion has worked extensively with women who are leaders already or who are aspiring to become one within their own context. In conjunction with this, she has also done a considerable amount of research on emerging and changing trends in women’s leadership.

I have been tentatively asked to speak to “defining success for yourself and making it happen.” My personal conception of what success is and my level of achievement in that regard are both rather fluid concepts, so this should be an interesting exercise.

I am particularly interested in the quotes contained in the draft discussion materials prepared by Marion McAdam, some of which I include here:

“Success has been defined by men all these years as movement high up the ladder. Women have to define success differently. It isn’t necessary to be the top person to be successful…Success is having work in your field that permits you to have a life as well. … A woman’s life is a horizontal journey rather than a vertical climb.”

“Women At Law: Lesson Learned Along the Pathways to Success” Phyllis Horn Epstein

Trying to act like men in the workplace creates a kind of dissonance. We can sense when people are not acting authentically and we don’t trust them. “Women bring a unique set of behaviours to the workplace that are needed, especially in today’s climate. Our tendencies to collaborate rather than compete, listen more than talk, and use relationships rather than muscle to influence are the very same behaviours I coach men to acquire. But it’s all about balance. Just as men can overuse their stereotypical characteristics, so can women.” (p. 62 Nice Girls Don’t Get the Corner Office)

“In order to be effective leaders, women need to be comfortable practicing law as women – in their own way. Women don’t need to practice law the same way that men do in order to be successful.”

It should be an interesting discussion!

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.