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Covid-19 Update

Blog

As the COVID-19 pandemic continues, the health and safety of our clients, staff and lawyers remains our top priority. Our office doors are open and we are available by appointment only. We are not facilitating drop in appointments at this time.

Please call our office at 250-542-5353 to set up an appointment.

Lawyers and staff meeting with clients will be wearing a mask and all visitors to our offices are required to wear a mask. Should you require a mask, we have them available for your appointments.

We thank you for continuing to place your trust and confidence in our firm.

-Nixon Wenger LLP

January 7, 2022
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Deceased does not mean debt free

Blog, Wills and Estates, Litigation

 

You may be forgiven for thinking that, once you pass away, your earthly cares are over.  In British Columbia, however, the mere fact that you have died will not necessarily save you from being sued.

Many causes of action will survive the death of a defendant.  If you die owing money, then that debt is still owing, and still collectible from your estate after your death.  Your creditor’s security will still be sound, and your estate will have to either pay the bill or risk judgment and collections.

Actions against a deceased person are governed by Rule 20-6 of the Supreme Court Rules and by s.150 of the Wills, Estates and Succession Act.  Rule 20-6 provides instruction for how person with a claim against a deceased person may bring that claim against the deceased’s estate.  If there is no personal representative, then the claimant may apply to have a litigation guardian appointed for the estate in order for there to be someone to sue; or, the claimant may apply to permit the matter to proceed in the absence of a personal representative of the estate.

But there is an easier way.

Notwithstanding Rule 20-6, there is specific statutory authority to bring actions against the estates of deceased people, whether the estates are being actively administered or not: you may simply sue the deceased person in their own name.

Section 150 of the Wills, Estates and Succession Act (called “WESA”) provides authority for proceedings taken by or against estates.  After confirming, in subsection (1), that the death of a party will not annul a legal proceeding, the section provides as follows:
150   (5) A person may commence or continue a proceeding against a deceased person that could have been commenced or continued against the deceased person if living, whether or not a personal representative has been appointed for the deceased person.
(6) A proceeding under subsection (5) may be commenced naming as defendant or respondent
(a) the personal representative, if any, or
(b) the deceased person.
(7) A proceeding under subsection (5) in which the deceased person is named as defendant or respondent is valid despite the fact that the deceased person is not living when the action or proceeding is commenced.
(8) All proceedings under this section bind the estate of the deceased person, despite any previous or subsequent appointment of a personal representative.

In other words, you can take action directly against a deceased person, by suing them in their own name.

I have personally used this section to start proceedings against people who have passed away but whose estates were not being administered by executors.  It is simple to start the proceeding, and requires no application.  However, when the time eventually comes to serve documents on the deceased person, then you can run into some tricky business.  It will not do to simply affix your documents to the cemetery gate.  You will have to find an alternate service method somehow – for instance by applying to serve the people who might be expected to benefit from the estate.

So deceased people can be sued, certainly.  But they can also sue.  Estate representatives are entitled to bring actions in the name of the deceased.  Section 150 of WESA also provides:

“Subject to this section, the personal representative of a deceased person may commence or continue a proceeding the deceased person could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled, if living.”

There are statutory and common law restrictions to the right to sue on behalf of a deceased person.  You can still sue for money owed or for the return of property, so your estate’s financial claims will be available.  But an estate cannot sue for libel, or for breach of privacy.  An estate cannot claim remedies for breaches of Charter rights or human rights, and cannot collect punitive or aggravated damages.  In short: money actions are permitted, but all those types of actions that reward damages for pain and suffering, indignity, and hurt feelings are no longer available as claims.

The law, it appears, assumes that once you have died, you are strictly business, and no longer take things personally.
Andrew Powell practices a wide range of civil litigation with a focus on business or commercial disputes, including breach of contract, lease and land use issues, corporate disputes including liquidations and shareholder issues, and realization and enforcement. Andrew also practices estate litigation, including wills variation claims.

October 2, 2020
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Can I stipulate how my ex spends child support payments?

Blog, Wills and Estates, Family Law

Imagine this not too uncommon scenario …
You pay child support to your ex spouse.  But, you are concerned about your ex’s spending habits. You go on social media and see your ex taking selfies at the mall, bragging about buying the newest (most expensive) gadgets. You see your ex is driving a brand new vehicle. She, or he, even goes on vacations to luxurious resorts. You are likely concerned that the child support payments that you are making are not being used for the children but rather for your ex’s expensive lifestyle.  

What can you do?

The short answer is … not much.  Payor parents are often surprised to learn that they can’t decide how the other parent spends the child support.

Child support payments are, in almost all instances, determined by reference to Child Support Guidelines.  If the child or children reside with one parent at least 40% of the time then there is a “primary parenting” arrangement.  This means that the non primary parent (the parent with less than 40% of the time with the children) pays child support to the other parent.  In this case, the amount of support is calculated based on the non primary parent’s income.

For example, if there are 2 children and they reside primarily with mom, and dad earns a gross annual income of $75,000 in British Columbia, then dad’s monthly basic child support obligation is $1,164.00.  A link to BC’s child support guidelines can be found here –  https://laws.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-1004611 .  Beyond basic child support there may also be “special or extraordinary expenses” for the children (known as “section 7 expenses” under the Child Support Guidelines), which are typically paid for proportionally based on each of the parents’ respective incomes.     

The purpose of child support is, in essence, to ensure that children are not economically deprived because their parents have separated.  From the children’s perspective, in an ideal world, their parents would still be together to provide emotional and financial support for them.

Thus, if you are paying child support but feel that the recipient is wasting the money, you may feel obligated to do something about this.  Maybe you want to pay the money directly to the child.  Maybe you want to get a Court Order directing how the recipient parent will spend the money.  Maybe you want to stop paying child support altogether.  However, none of these are viable options.

Various courts across Canada have held that it is up to the parent entitled tor receive child support to determine how she or he spends the money in the best interests of the child (or children).  The fact that child support payments indirectly benefit the recipient parent does not mean that the child support payments can or should be adjusted (for further reading, the Alberta Court of Queen’s Bench recently addressed this issue in an April 24, 2020 decision from that court – BDM v. MMM, 2020 ABQB 288 http://canlii.ca/t/j6mh6 ).

Ultimately, if you are concerned that your spouse is seriously misusing child support payments, and is unable to manage their finances such that it is affecting the best interests of your children, you may need to consider adjusting the parenting arrangement that is in place.  In this case, the children’s best interests may be met by changing which parent they primarily live with.

If you have questions about child support or adjusting a parenting order or agreement, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to best move forward.  
 

         

 

       
 
     

September 17, 2020
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Relocating with your Children Post COVID-19

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I started my last blog with a musical reference, so in keeping with tradition, I’ll do the same here.  In 1980, the venerable Neil Diamond (noted for his smash hit “Sweet Caroline”), released the patriotic soft rock ballad “America”.  The song describes the immigration of millions of people to America over the decades who sought a better life.  One line of the chorus goes:

Got a dream to take them there
They’re coming to America
Got a dream they’ve come to share
They’re coming to America 

Indeed, people crave a better future.  This often requires moving to a different city, province, or country. 
The COVID-19 pandemic has forced many people to rethink their career.  Some folks were temporarily laid off, others lost their job, and even more likely experienced a change in their job duties. 
As a result, many people may be considering a move for a better job. 
So – if you have children and you and your ex spouse have a written parenting agreement or parenting order, can you move to a new city with the kids? 
The short answer is … maybe.
In British Columbia, there is actually a procedure in the Family Law Act that, in principle, sets out a fair process to decide the issue of relocation when there is a written parenting agreement or parenting order in place. 
I’ll set out (in very basic terms) that process below:

1)     Firstly, a “move” / “relocation” in this case means one that will have a significant impact on the children’s relationship with your ex (so, moving 10 minutes down the road likely isn’t a “relocation” under the Family Law Act).  If you plan to move with your kids and you have a written parenting agreement or parenting order with your ex, you must provide at least 60 days’ written notice of the location and date of your move.  The notice should also provide details about where you and the kids plan to live, where they will go to school, any childcare arrangements at the new location, and any extra curricular activities the kids would participate in.  The notice should also set out a proposed parenting schedule for your ex in light of the move.

2)     After providing written notice to your ex, both of you have a statutory duty to use best efforts to try and resolve the issue of relocation.  This would likely entail both of you trying to agree on a new parenting arrangement for your ex if he / she would consent to the move.  This might mean giving the children more time with you ex during school holidays, long weekends, summer holidays, etc. 

3)     If you and your ex cannot reach an agreement on the relocation, your ex can file an application in court to prohibit the relocation (which must be done within 30 days of receiving your written notice – see point #1, above). 

4)     If your ex does file an application in court, this doesn’t end the matter.  You will be permitted to respond by filing your own documents (reply and affidavit evidence).  Ultimately, the issue of whether you can relocate with the children will be set down for a hearing before a judge. 

5)     The judge will first need to determine if both you and your ex have “substantially equal parenting time” with the children.  If this is the case, you will be required to prove that the move is in the best interests of the children.      

6)     More generally, the facts that the judge will examine are: (a) whether the proposed move is made in good faith, (b) whether you proposed reasonable and workable arrangements to preserve a relationship between the children and your ex (and his / her family) if you did move, (c) whether the proposed move is likely to enhance to general quality of life for the children, including emotional well being, financial or emotional opportunities.

In short, the issue of relocating with children can be complex.  You must provide proper notice to your ex and you must try to work out a solution if possible.  If you cannot reach an agreement, it is likely that you will be dealing with the issue in court. 
If you have questions about relocating with children, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time. 
Darren Schmidt maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.         
  

July 21, 2020
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Coming Through COVID-19 – Maybe a Marriage Contract is in Order?

Blog, Real Estate, Wills and Estates, Family Law

I was driving recently and a song came on the radio that caught my ear.  It was the 70’s soft rock hit “Make it With You” by Bread.  The song starts as follows:
               
“Hey, have you ever tried
                Reaching out for the other side
                I may be climbing on rainbows
                But baby, here goes …”
 
The chorus goes “I want to make it with you … I really think that we can make it, girl.”
 
This might sound cheesy, but all relationships are about expectations – including marriage.  Even if your marriage is on the rocks, it may be possible to get things back on track.  
 
There’s lots of news lately about the anticipated rise in divorces and separations as we move through the COVID-19 pandemic.  There could be a number of reasons for this, such as families having less income due to one or both spouse losing employment, or the sudden shift in family dynamics when spouses and children are cooped up at home. 
 
This is where an experienced family lawyer can help, namely in drafting up a marriage contract, otherwise known as a post-nuptial agreement.  These agreements are written contracts made by spouses (after marriage) that set out how they want to move forward, as well as the legal rights and duties of each spouse if the relationship ends.  Examples of things that might go into such a contract are:
•    Domestic responsibilities
•    Parenting responsibilities
•    Management of finances (e.g., who uses certain back accounts)
•    Division of property and debt if the marriage ends
•    Spousal support if the marriage ends
So, before deciding you need to end your marriage ask yourself if it is worth sitting down with your spouse to talk about expectations.  A family lawyer can help you condense your expectations in writing to make a legally binding marriage contract.
If you have questions about drafting a marriage contract, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time. 

Darren Schmidt maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.  

June 17, 2020
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Witnessing land title documents during a pandemic

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Under the Land Title Act of British Columbia, individuals must execute certain real estate documents, including title transfers and mortgages, in front of a lawyer or notary. In response to the COVID-19 pandemic, the Land Title and Survey Authority of British Columbia (the “LTSA”) is temporarily allowing lawyers to remotely witness land title documents provided certain procedures are followed:

  1. The client must show unexpired photo identification and the lawyer must be satisfied that the individual on video is the same as the identification shown. The lawyer must take a screenshot of the front and back of the identification;
  2. The lawyer and the client must compare the document they are about to sign to confirm both parties have an identical copy;
  3. Every page is to be initialled in the bottom right corner by both parties;
  4. The document is signed by the client and witnessed by the lawyer;
  5. The client delivers the document to the lawyer electronically;
  6. The lawyer confirms that it is an exact copy of the document in his/her possession; and
  7. Once the counterpart signatures are attached, the lawyer completes a certificate stating that remote witnessing was necessary because it was impossible or unsafe for COVID-19 medical reasons to be physically present with the client.

Krystin Kempton is a Partner at Nixon Wenger LLP where she has a general solicitor’s practice, advising corporate and individual clients on corporate and commercial transactions, lending and borrowing, wills and estates and real estate matters.

May 21, 2020
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COVID-19 Related Changes to the Employment Standards Act

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There have been some important changes to the Employment Standards Act in the wake of the COVID-19 pandemic.  These changes include an extension to the temporary layoff period, a new COVID-19 related leave, injury and illness leave, and further word on the threshold an employer must meet to be exempt from providing notice or pay in lieu upon termination of an employee whose job is no longer available due to COVID-19.  These changes are relevant for many of the local employers faced with slowdowns and economic hardship arising from the current shutdowns.

For employers that conducted layoffs when the COVID-19 related shutdown started, the extension of the temporary layoff period from 13 to 16 weeks in a 20 week period means you may be able to avoid letting go of employees whose jobs are still not available.  It is expected that this change is to be time limited and that it will be repealed when no longer needed.  

Despite this change, non-unionized employers would do well to remember that, except for a few exceptions, they still require a contractual right to lay employees off.  Where an employer lays an employee off without the contractual right to do so, there is risk that the employee will consider themselves constructively dismissed.  Before laying off anyone on your team, we recommend contacting an employment lawyer to discuss your options.

Another change of note from last month is that a COVID-19 related leave has been introduced in British Columbia.  This change creates an entitlement for employees to obtain a job-protected, unpaid leave.  This leave is available to employees who are ill, quarantined, or who are caring for a child or dependent.  Employees who are unable to return to work due to travel restrictions also qualify for COVID-19 related leave.  Employees may also qualify for this leave where their employer has directed them not to work due to concern about exposure to others.  While employers may be entitled to verification that the employee meets any of the above criteria, it is not open to an employer to require their employee to get a medical note.

While perhaps less directly a result of COVID-19, another development to note is that the Act has been amended to include up to three days unpaid but job-protected leave for employees who can’t work due to illness or injury.

While strictly speaking not a change to Employment Standards Act, a noteworthy update has been made to the guide available on the Government of B.C. website for the Act.  This update provides clarity for those wondering whether they still owe termination pay to dismissed employees where that dismissal was due to a work shutdown caused by COVID-19.  An important exception to the length of service and group termination pay obligations of employers under the Act is found in section 65(1)(d) which exempts employers from having to make such payments where an employee’s continued employment “is impossible to perform due to an unforeseeable event or circumstance…”  This provision in many ways mirrors the common law principle of frustration.  The guide sets a high threshold for the exemption to apply, requiring that the conclusion of employment be due to COVID-19 and noting that “if the employee’s work could still be done (perhaps in a different way, such as working from home) the exception would not apply.”  This language means that the circumstances in which section 65(1)(d) works to protect an employer from liability for length of service and group termination pay will be limited.
Dan Draht has a civil litigation practice which includes property litigation, employment law, and other business or commercial disputes.  His practice also includes personal injury litigation and other tort related disputes.

May 14, 2020
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Update on Co-Parenting during COVID-19

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Beginning in March, 2020, the British Columbia provincial government imposed social distancing directives to reduce the spread of the novel coronavirus.  
 
One consequence of social distancing is that separated parents have had to figure out if, or how, to exchange their children between households.  This has become even more difficult as the various courts in BC have suspended regular operations.  The courts are currently only hearing essential and urgent matters by videoconference or telephone.
Over the last few weeks there have been a number of reported court decisions in British Columbia regarding urgent parenting issues during the pandemic.  We’ll take a look at a few of these cases to provide a sense of how the courts are dealing with co-parenting at this time.
 
•    On April 1, 2020 the BC Provincial Court released its decision: V.C.S. v. T.S., 2020 BCPC 60.  The father, from Prince George, sought the return of his two children their mother’s home in Pitt Meadows (a 750 kilometer drive from Prince George).  The children were visiting with their mother in Pitt Meadows during spring break.  The mother refused to return the children as she was fearful of driving with the children and visiting public locations such as gas stations, restaurants, etc. with the children.  The judge found that using businesses like gas stations posed a limited risk but said, “despite that risk, I note the health authorities have not sequestered everyone to their houses and banned all public outings.  Rather, safety protocols have been implemented to mitigate the risk of transmission.” (paragraph 16).  The judge went on to say that the mother could follow some simple measures to reduce the risk of entering businesses, such as standing away from others, washing hands in the bathroom, and even said “the children could be given disposable gloves or towelettes to use as makeshift gloves when making contact with handles, lids, and paper rolls in the course of using the washrooms.  They can lay down a toilet paper lid before they sit.  They can wash their hands thoroughly upon completion.” (paragraph 22).  The children were ordered to be returned to their father.
 
•    Also on April 1, 2020, the BC Provincial Court issued its decision: N.J.B. v. S.F., 2020 BCPC 53.  In this case, the father asked the court to suspend the mother’s parenting time with their child.  The father was concerned that the mother would not obey the social distancing directives and expose the child to the virus.  The court relied on an expert psychologist’s recommendations (Dr. Michael Elterman) respecting co-parenting during COVID-19.  The judge noted that Dr. Elterman has considerable expertise in child matters “and is well known to this court.” (paragraph 27).  The judge set out Dr. Elterman’s recommendations and said they “should form part of decisions regarding parenting arrangements,” which include:
 
(1) If a parent has had contact with an infected party, they should disclose this immediately to the other parent.
(2) If the parent is infected or even ill with symptoms or needed to be tested for Covid-19, they should not take the child.
(3) If the parent is in a home with older family members or friends or with individuals who are immune-compromised, the child should not be in that home.
(4) There should be no play dates and the child should not be taken to family or social gatherings.
(5) If parenting time is to occur in a public place such as a community centre, a mall or a restaurant, then it should be suspended.
(6) If a supervisor is required and who is not the spouse of the parent and living in the home, then the parenting time should be suspended.
(7) If either parent or anyone in the household is in an Essential Service or still working with the public, eg. doctors, nurses, at a supermarket or pharmacy, flight attendant, etc.) then this can represent an increased risk to the child.  (paragraph 28).  
The court in N.J.B. clearly stated it will require more than mere allegations that a parent will not follow social distancing directives.  Rather specific examples and evidence are required in order to suspend one part’s time with the children (paragraph 31, citing an Ontario case: Riberio v. Wright, 2020 ONSC 1829).  The court in N.J.B. concluded that the father had not proven that he mother had done, or would do, anything to increase the risk of the child contracting coronavirus and he was, accordingly, ordered to follow a prior order.         
If you have questions about an urgent parenting concern, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time.   
Darren maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.  

April 26, 2020
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Preparing for Your Estate Planning Meeting

Blog, Real Estate, Wills and Estates, Business Law

Estate planning is an important part of protecting your family and loved ones in the event of your death or loss of capacity. It is always a good idea to consult with a legal professional who can advise you on your rights and obligations and help you prepare your Will and incapacity planning documents. Below are some things to think about before meeting with a lawyer or notary:

Will:

1.     What are your general objectives? What do you want to achieve? What do you want to avoid? For example, you may wish to ensure your spouse and children are looked after and reduce the impact of taxes.

2.   Who do you want to appoint as executor of your Will? This is the person who will administer your estate. Often spouses are appointed as executor since your spouse likely has the most knowledge of your assets. Make sure to speak to your intended executor(s) in advance to make sure he or she is willing to act. Being an executor is not a fun job and naming a person as executor does not mean that person is obligated to take on the role. Consider who you would like to appoint as an alternate executor if your first choice is unable or unwilling to act as your executor.

3.     Consider whether you will gift any specific assets or cash to a particular beneficiary or beneficiaries – for example, a cash gift of $1,000 to a close friend or your jewellery to a granddaughter. Please keep in mind that assets will change over the years.  

4     The residue of your estate is everything that is left after payment of debts, funeral expenses, executor’s fees, taxes, legal and other expenses incurred in the administration of your estate, and following any gifts of specific assets or cash, if any. Consider how you want the residue of your estate to be distributed. You should also consider whether you want your beneficiary or beneficiaries to reach a certain age before they receive their share of your estate. Are any beneficiaries disabled and receiving government benefits? If so, it is important to develop an estate plan that does not inadvertently disqualify the beneficiary from receiving those government benefits. 

 5     If your beneficiary or beneficiaries have died before you, what happens to their share? Will it go to that beneficiary’s children, if they have any children alive on the date of your death? Will it go to a different beneficiary? For example, you may wish to leave everything to your spouse if they survive you. If your spouse has died before you, you may state that his or her share will be evenly distributed among your children (if any). What happens if one or more of your children have died before you? Do you want that child’s share to pass to his or her children or do you want that child’s share to be divided among his or her siblings who are still alive at the time of your death?

6.      How would you like your estate distributed in the event of a family tragedy where all of your beneficiaries have died before you or at the same time as you? Will your estate go to your parents? To your siblings? To a charity? To a friend?

In British Columbia, the Wills, Estates and Succession Act (“WESA”) is the governing legislation about wills and estates. Under WESA, spouses (both legal and common law), as well as natural and adopted children, can apply to court to vary the Will of a deceased spouse or parent if the Will does not make adequate provision for his or her proper maintenance and support. The court may disregard the wishes of the deceased if the reasons for disinheritance are not rational or reasonable. The court may amend the distribution to one that it thinks is fair in the circumstances. 

Power of Attorney

A power of attorney grants someone else the right to act on your behalf with respect to your financial and legal affairs. It is important to appoint someone you trust because the power of attorney is basically like a permission slip for that person to manage your assets. Once you grant someone power of attorney, they become known as your “attorney.” The scope of the authority can be as broad or as specific as you like. You may allow your attorney to manage all aspects of your financial and legal affairs indefinitely, or you may wish to restrict it to specific tasks or dates. The right to act as your attorney may be effective immediately or only in the event you have lost mental capacity and are incapable of managing your own affairs. It is important to include language in the power of attorney that the authority continues despite your loss of mental capacity in order to make it an “enduring” power of attorney.

Consider who you would like to appoint as your attorney and who you would like to appoint as an alternate attorney if your first choice is unable or unwilling to act. Consider whether you would like your attorney’s authority restricted in any way and when you would like the attorney to be able to start acting on your behalf.

Representation Agreements

A representation agreement is a legal document appointing someone to assist you or act on your behalf for health care and personal care matters. This tool gives someone the right to give consent or refuse to give consent on your behalf, if you are unable to do so yourself, to minor or major health care (including decisions about medication, tests, surgery and end of life comfort care) and the right to make decisions about your personal care, such as living arrangements, diet, clothing, exercise, taking part in activities and personal safety issues. Enhanced representation agreements include end of life decisions and give your representative the authority to refuse life support under certain circumstances.

Having a representation agreement ensures that someone you trust will have legal authority to carry out your wishes if you are incapable of giving or refusing consent. By setting out your end of life decisions in the agreement, you may provide comfort and ease the emotional anguish of those who have to decide whether life support measures should be continued or withheld.

Consider who you would like to appoint as your representative and who you would like to appoint as your alternate representative if your original representative is unable or unwilling to act. Consider whether you want life support measures continued or withheld (i) in the event you are terminally ill with no chance of recovery; and (ii) in the event you are in a permanent vegetative state with no chance of recovery. Consider whether you would want medicine administered to you in your terminal state even if it hastens your death.

Krystin Kempton is a Partner at Nixon Wenger LLP where she has a general solicitor’s practice, advising corporate and individual clients on corporate and commercial transactions, lending and borrowing, wills and estates and real estate matters.

April 23, 2020
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How does Occupiers Liability apply during the COVID-19 pandemic?

Blog, Real Estate, Business Law, Litigation

In British Columbia, the Occupiers Liability Act, RSBC 1996 c 337, sets out the legal obligations that occupiers owe to people visiting their premises.  Occupiers can be individuals or businesses who are in physical control of the premises, or those who have responsibility for, and control over, the condition of the premises, the activities conducted on the premises, and who is allowed to enter the premises.  This can include business owners, landlords, tenants, and home owners. 
Occupiers owe a legal duty to ensure visitors are reasonably safe in using their premises.  This duty applies to the condition of the premises, activities on the premises, or conduct of others on the premises.  It is important to note that there are many factors to assess when determining where the responsibility falls in the event of injury or loss.  How far this duty extends will depend on the circumstances of each situation.
You may be wondering: how does this apply during a pandemic and the current context of COVID-19?
Generally, the liability of occupiers remains the same.  However, be aware that occupiers may be found liable for the spread of the virus at their premises.  If an occupier fails to take reasonable care to respond after a person known to have been infected with COVID-19 attended the premises, the occupier may well have breached its legal obligations under the Occupiers Liability Act. 
Reasonable response efforts to ensure the safety of visitors may include:
•    immediate sterilization of the premises;
•    closure of the premises during sterilization efforts; and
•    clear and timely warnings to visitors and employees.

It is important for occupiers not to ignore applicable privacy laws in these circumstances.  While appropriate information may need to be shared, specific names should not be released.

Occupiers should also consider having a formal COVID-19 plan in place that sets out response efforts in the event of virus exposure. 

We stress that all cases are fact specific.  The information above is intended to provide some guidance during these uncertain times.  You should obtain legal advice specific to your situation if you have had a potential exposure at your premises or if you have been exposed to the virus while attending premises.

Allison is an Associate in the Civil Litigation practice group at Nixon Wenger LLP.  She has a general civil and commercial litigation practice, with an emphasis on tort related disputes, contract disputes, personal injury litigation, employment matters, and maritime, shipping, and environmental law.  Allison has represented clients at all levels of court in British Columbia, and works with her clients to find solutions that work best for them within the litigation process.    

April 9, 2020
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