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!

Stansfield died last week at 57, after six years of being treated for cancer. I interviewed him five times in the past three years and was always struck by his passion for justice and his desire that every person and every community have access to it. His desire to create the best justice system possible is now his legacy.

When he became chief judge in 2005, Stansfield brought a new feel to the office. We didn’t hear much from judges, never mind the top provincial court judge. Stansfield changed that, making himself available to media throughout the province. He was as happy to be interviewed by the Nanaimo Daily News as go on radio or TV.

As associate chief judge in the 1990s, he oversaw what became known as the criminal case flow management system. Lawyers, even some judges, grumbled about it, but Stansfield consulted widely in addition to drawing on his own experience in courthouses large and small in creating the system. Lawyers were concerned that the CCFM, as it came to be known, would alter their own case flow and cut into their billing. But Stansfield had anticipated that and was clear that the system actually created more flexibility, and that lawyers could make as much or more as under the old system.

When he first came to Nanaimo as chief judge in May 2006, Stansfield addressed a gathering of business people. He didn’t tell them what the justice system was going to do about drugs and crime, just when Victoria Crescent had seen the arrival of open drug use and dealing and the problems that went with that.

Stansfield turned the tables and invited them to join the justice system in finding a solution. I have to admit I was a little surprised, and happy, to hear that the chief judge had some good ideas about changing the perceptions of a failing justice system.

“We need to be integrating (the justice system) into communities in ways we never have before,” he said at the time. “We’re recognizing we can’t be that way, we have to open up the doors, literally and metaphorically.”

Stansfield was back in Nanaimo a month later speaking to city staff members, council members, police and Crown and defence lawyers in light of the drug plague that had invaded the downtown. Again Stansfield didn’t bring a message of stiffer sentences and harsher laws. He knew how those efforts not only fail, but compound criminality.

The most important piece, said Stansfield, was finding a way to help drug users.

“For some offenders, their lives are going to be served best by getting at their problems,” said Stansfield.

As he did with streamlining a convoluted court system designed for a past era, Stansfield went on to be the figure behind opening a drug court in Vancouver as well as the community court pilot programs. I remember his passion as he described to me the Red Hook Community Justice Centre in New York that he had visited.

If I understand Stansfield’s vision, it was for a justice system that reserved the adversarial process for serious crimes and diverted drug and mental health cases to the proper forums where they would be handled as health issues. Civil cases also needed to be moved into a realm where the courts were part of dispute resolution, not dictating a decision, he said. It’s sad Stansfield has been taken from us, but his passing will give all of us the opportunity to embrace his vision of creating a justice system that is effective as well as compassionate.

© Copyright (c) Canwest News Service

A common misconception is that an RESP is actually a trust, and upon the death of the subscriber, the assets comprising the RESP will be held in trust for the benefit of the beneficiaries identified in the contract between the subscriber and the promoter.

Because of this misconception, many people imagine that they do not need to worry about the disposition of their RESP assets upon their death. Not correct.

In fact, upon the death of the sole subscriber or the surviving joint subscriber, the RESP becomes an asset of his or her estate and is subject to the terms of the deceased subscriber’s will. In addition, an RESP remains an asset of the estate for the purposes of creditor claims and calculation of estate administration taxes.

Typically the contract with the promoter is binding on the subscriber’s personal representatives. However, the fact that the RESP contract is binding on the subscriber’s personal representatives does not necessarily mean the personal representatives assume all of the rights of the subscriber with respect to the RESP. It may be that the contract provides that only the right to manage the RESP will flow to the personal representatives. In such a circumstance, the personal representatives would not be allowed to add or change beneficiaries, to make withdrawals, or to direct EAPs to or for the benefit of assisting a beneficiary to further his or her education at a post-secondary school level, without taking some further steps (such as making a contribution to the RESP) in order to acquire full rights as a succeeding subscriber.

It is therefore important to review the contractual terms of the RESP to determine, among other things, whether it:

(1) permits the subscriber to name a succeeding subscriber;

(2) imposes any requirements on the succeeding subscriber to make a contribution to the RESP in order to assume the full rights of the subscriber with respect to the RESP; or

(3) provides that the subscriber’s personal representatives become the succeeding subscribers.

The contractual terms of the RESP should also be reviewed in order to determine whether there are any further restrictions imposed on succeeding subscribers with respect to any other matters regarding the RESP, including the ultimate distribution of the assets of the RESP.

In short, a review of the contractual terms of the RESP is necessary to determine whether the contract provides for any other person (including the estate of a deceased individual) to acquire the deceased subscriber’s rights under the RESP and thereby become the new subscribers of the RESP for the purposes of the ITA.

This information is based on a chapter written by Laura West in British Columbia Estate Planning and Wealth Preservation.

The CRA was asked whether a testamentary trust, created by the will of a resident in Canada for the benefit of a resident of Canada with a non-resident trustee, will be resident in Canada.

The CRA stated that, generally, a trust is considered to reside where the trustee or other legal representative who manages or controls the trust would be considered resident.

Under paragraph 94(1)(c) of the Income Tax Act, a trust may be deemed resident in Canada where

• the amount of income or capital of the trust to be distributed to any beneficiary depends on the exercise or failure to exercise discretion by any person, including the trustee;
• the trust has a beneficiary who is resident in Canada;
• and the trust has received property from, among others, a person related to the beneficiary and the person who contributed the property has been resident in Canada for a total of more than 60 months during his or her lifetime and was resident in Canada at any time during the 18 months prior to the transfer of the property prior to his or her death. Paragraph 94(1)(c) does not apply if the discretionary power relates only to the timing of the payment, rather than the amount of income or capital that is to be distributed.

Where the first criterion noted above is not met but the second and third criteria are met, paragraph 94(1)(d) requires any Canadian beneficiary with 10 per cent or more of the total fair market value of all beneficial interests in the non-resident trust to include an amount in his or her income of a portion of the trust’s foreign property accrual income. Additionally, section 94.1 may apply to require any beneficiaries resident in Canada to include an income amount in respect of his or her interest in the trust annually.

Additionally, under proposed subsection 94(3), a trust that would otherwise not be resident in Canada would be deemed resident in Canada for the purposes elucidated in proposed subsection 94(3) if the trust has either a ‘‘resident contributor’’ or a ‘‘resident beneficiary’’ as those terms are defined in the proposed legislation.

— Document No. 2008-0285961E5, September 16, 2008

From the UBC Law School Web Site:

UBC Faculty of Law is delighted to announce that the student-led initiative recommending that UBC Law change the name of its degree from an LL.B. (Bachelor of Laws) to a J.D. (Juris Doctor) takes effect in 2008/2009 academic year.  Second and third year students will have a choice to receive either the LL.B. or J.D. degree when they graduate. Current first-year students will graduate with a J.D.

Extensive consultations with UBC faculty, students and alumni and wider constituencies revealed widespread support for the change.  Positive feedback came from all generations of alumni, with many expressing an interest in changing the name of their degree retroactively. Information will be made available later this fall to alumni wishing to retroactively change the name of their degree designation to a J.D.

Many thanks to all the students who worked so hard on this issue including, especially, the LSS Executive of the 2006/2007 academic year.

The Memorial Society of BC, incorporated October 12, 1956, is a non-profit and volunteer driven Society. Fifty-five people who met in a church hall in Vancouver initiated it, and its current membership of 207,000 makes it the largest memorial society in North America.

Purposes of the Memorial Society

• To assist members in advance of death for the disposition of their remains;
• To assist and support the bereaved in making death arrangements;
• To promote environmentally sound arrangements for disposal of remains;
• To ensure the availability of affordable funeral arrangements through written contracts with selected funeral services providers and to monitor the practices and performance of funeral services providers;
• To engage in educational and public awareness programs in support of these purposes;
• To promote the continuance of a dynamic and responsible society.

The Memorial Society’s vision and persistent work on behalf of its members has meant that BC has the lowest cost of funerals in North America. Staff and Society volunteers assist members to prepare final arrangements in advance, keep records of members’ wishes, and help members to cope when a death occurs in a family. The lifetime membership fee of $30 enables the membership access to its contracted prices with its providers and the services of the Society’s staff and office resources.

About the Memorial Society

• Directors and employees have no vested interest in goods or services provided by the funeral industry
• Directors and employees are not employed by the funeral industry
• Directors and employees do not receive commissions on referrals made to the funeral industry
• The Memorial Society neither makes nor initiates calls to arrange a home visit to update members’ information. (This is an unethical tactic used to open the door to illegal sales of funeral goods and services.)
• The Memorial Society of British Columbia is not owned by a multi-national funeral corporation.

In the future, the Memorial Society intends to broaden its involvement by engaging the larger society to examine cultural, ethical and environmental issues concerning funeral practices.

Contact

Nicole Renwick, Executive Director

Memorial Society of British Columbia

205 – 640  West Broadway

Vancouver BC  V5Z 1G4

Phone:604-733-7705 or 1-888-816-5902

Fax:    604-733-7730 or 1-888-816-5903

e-mail. nicole@memsoc.org

Christmas, associated with the birth of Christ and the celebration of the nativity, also falls at the same time of year as pagan festivals and traditions dating before the birth of Christ.

This year Winter Solstice will occur on December 21^st at 4:04 am PST. To our ancestors, the shortest day marked the lowest ebb of the year, but it also marked the day when the sun was reborn, gradually growing in strength to the Midsummer Solstice. Many ancient monuments are aligned with the winter sunrise on the 21st of December. The most famous is Newgrange in Ireland, where a finger of sunlight shines along the dark entrance through a narrow aperture above the monument’s entrance.

The Yule festival at the winter solstice was celebrated by pagan Germanic peoples and lasted for twelve days which became the traditional Twelve Days of Christmas. The origin of the word Yule originates from the Anglo Saxon word for sun and light, most likely regarding the rebirth of the sun from the shortest day. Fires or candles were kindled to burn through the twelve days that marked the festivities. Another fire tradition was that of the Yule log, lit from the remains of last years log at sunset on the 25th of December.

Many of the symbols of Christmas echo its aspect of rebirth and hope in darkness. For example, holly was thought to be important because it retains its greenery right through the winter months, and as such is a symbol of summer life in the winter starkness.

Reflecting on 2008, it has been marked by financial and political adversity and instability, but also with signs of hope for the future.

We are wishing you renewal of spirit, hope and joy during the holidays and in 2009.

Heritage Law is sponsoring the next West Vancouver Chamber of Commerce breakfast event.

When: 7:30 to 9:00 am Wednesday, March 14th, 2007

Where: Hollyburn Country Club, 950 Crosscreek Rd, West Vancouver BC

Cost: Members $25.00 / Non-Members $35.00 (GST Included)
Pre-paid registration is required

Francesco Aquilini, Managing Director, Aquilini Investment Group Inc.

Born and raised in East Vancouver, Francesco Aquilini is Managing Director of the Vancouver-based Aquilini Investment Group, a family-owned and operated firm that was started by his father, Luigi, some 50 years ago.

The company owns and manages a diversified real estate portfolio that includes commercial properties, office buildings, hotels, golf courses, and cranberry farms, as well as the development and sale of multi-family residences and condominiums.

In addition, the Aquilini Investment Group is the owner of the NHL’s Vancouver Canucks and General Motors Place, with Mr Aquilini acting as the team’s NHL Governor.

A business administration graduate of Simon Fraser University, Mr Aquilini received his MBA from the University of California, and over the past 25 years, he has worked in each of the Group’s operations, providing him with broad national business experience.

Committed to a number of unique community endeavours, Mr Aquilini was the chair and primary sponsor of the Italian Gardens at Vancouver’s Hastings Park. In addition, the Aquilini Investment Group was instrumental in the creation of a 100 hectare nature conservancy named for the company in British Columbia’s Fraser Valley. In addition, together with his wife, Taliah, Mr Aquilini is also an active corporate and community fundraiser for the Canucks for Kids Fund, the signature charity of the Vancouver Canucks.

Heritage Law is featured in the latest issue of Law Practice Magazine:

Going Solo: Rising to the Challenge