Business in Vancouver’s Top Forty Under 40 profiles BC’s outstanding entrepreneurs, executives, managers and professionals in public or private business or in non-profit sectors. Winners are chosen based on such values as achievement, experience and innovation, vision, leadership and community involvement.

Nicole Garton-Jones is the founder and managing partner of Heritage Law and a proponent of innovative law firm business structures, the use of technology in the practice of law and the retention of women in the legal profession.

In addition to managing Heritage Law, Nicole Garton-Jones practices wills, estates, elder and family law and has a particular interest in mediation and collaborative family law.

To read more, please click:  BIV Top 40 Under 40 Award

Jordan Furlong, journalist, consultant and award-winning author of law blog Law21 featured Nicole Garton-Jones and Heritage Law in “Leading the Way” for the Canadian Bar Association’s National magazine’s September issue. Mr. Furlong cites Heritage Law as an example of a new class of “highly innovative start-up law firms (that) are taking on new markets, leveraging technology and dreaming up new ways of doing business.”

Mr. Furlong describes Heritage Law as “one of the most streamlined, automated and forward thinking legal business models in Canada.”

You can download a pdf of the article or see the entire magazine here.

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 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.

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.

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.