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.

Capilano Golf & Country Club
420 Southborough Drive
West Vancouver, BC

RSVP: Susan Schweighardt 778-786-0615 ext. 112 or susan@bcheritagelaw.com

CLE-TV – Going Out On Your Own – Live Webcast

Tuesday, January 12, 2010
Location: Online
12:00 pm – 1:00 pm

Who should attend: All lawyers.

Learning level: All levels

Is setting up a practice for you? Hear from two who have done it successfully and can share their knowledge and experience – both good and bad – with you.

* planning for success
* setting up your office
* marketing
* client relations
* managing money
* future trends

This course is one of CLEBC’s NEW CLE–TV programs, one-hour online courses with live video streaming. These one-hour, lunch time programs are delivered live from our CLE–TV studio. Most programs have an interview format, with plenty of opportunities to ask questions of the presenters through text chat.

Law Society of BC CPD Hours: 1 hour (also qualifies for professional responsibility and ethics, client care and relations, and/or practice management credit)

Course Host
Nicole L. Garton-Jones — Heritage Law, West Vancouver

Course Guest
R. Trevor Todd — R. Trevor Todd Law Corporation, Vancouver

Pricing
EARLY BIRD (Register by December 29, 2009 and SAVE)
Live Webcast: $85

The Vancouver Club
915 West Hastings Street, Vancouver, BC

Wondering why the old law firm practice model isn’t working so well for the younger generation in particular?

Looking for both economic success and long term talent retention?

Hear about three real-life BC examples of new approaches to law firm management that provide win-win-wins for law firms, lawyers and clients. Nicole Garton-Jones of Heritage Law (Nominee for Work Life Balance Award, 2008), Ashleigh Baylis of Pushor Mitchell (Winner of Work Life Balance Award, 2009) and Scott Stanley of Murphy, Battista (Nominee for Work Life Balance Award, 2008) will present three new models for increasing both productivity and retention.