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Impacts of COVID-19 on Parenting and Custody Matters

The COVID-19 pandemic has caused unprecedented levels of uncertainty in all aspects of our lives, including in the operation of our courts. As of March 20th, the various courts in British Columbia have suspended most of their operations.

Currently, the courts in BC are only hearing essential and urgent matters. These matters include issues relating to the safety of a child or parent due to a risk of violence; wrongful removal of a child from a jurisdiction; or matters relating to the well being of a child. All other matters are suspended and will not be heard by the courts until at least May, 2020.

My ex and I share time with our child – what can we do in an age of “social distancing”?

For most of us, the phrase “social distancing” didn’t exist until a few weeks ago. It’s now become our reality.

If you and your ex spouse have kids and share them between your two homes, what do you do? Do you exchange the kids between two houses? Do you send the kids to your ex’s house? Should you protest if your ex won’t send the kids to spend time with you?

The only clear answer is that there isn’t a clear answer. Each case will be dependent on your specific circumstances.

The best approach parents can take is to consider only the best interests of the kids. In fact, this is the only thing a court will consider when deciding an appropriate parenting arrangement. Section 37 of the British Columbia Family Law Act sets out a number of factors a court must consider when deciding what is in the best interests of a child. The most important factors in light of the COVID-19 outbreak are:

• the child’s health and emotional well-being;
• the ability of each person … who has parenting time or contact with the child, to exercise his or her responsibilities;

Although the COVID-19 pandemic is new, courts in BC have considered the issue of when a parent has a contagious virus and seeks parenting time with a child. In D.M.M. v. D.F., 2015 BCPC 0310, the father previously had the Hepatitis C virus and the evidence at trial showed he did not take sufficient care of his hygiene such that his daughter may have been exposed. The father said he had recovered from the virus but the court said “while his freedom from the virus is obviously very good news, I remain concerned about [his] attitude towards [the daughter’s] safety, since he was contagious at the time he was with her.” (para 72). This finding, among other findings at trial, resulted in an order that the mother have primary care of the daughter.

Thus, it is imperative that parents take all precautions and follow the advice from governments and health authorities during the COVID-19 pandemic. 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 in 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.

March 20, 2020

It’s time to privatize auto insurance in BC!

Personal Injury, Litigation, Blog

The vast majority of British Columbians are sick and tired of ICBC and its excuses. We have been through a year of ICBC blaming claimants, the courts and lawyers for its allegedly poor financial performance. At the same time insiders of ICBC have publicly said that there was no “financial mess” and that the corporation was actually going to make a profit in 2018. ICBC used the excuse of financial performance to have the government change the legislation that applied to it so that it could unload costs onto private insurers and reduce claims costs by circumventing the law of damages with an injury cap. And after doing that ICBC significantly raised rates for everyone.

Over the last few years in my practice as a senior litigation lawyer I have dealt with ICBC on multiple claims where they have taken very unreasonable positions and caused matters to go to trial, only to cost the corporation hundreds of thousands of dollars more for a particular claim. In some cases millions of dollars more. Recently there was another example of this in a case that went to trial (and is now public record) called Bonneau v. Neate et al. The ICBC adjuster took a very unreasonable position on damages, even though liability was admitted, and refused to put any more money on the table to resolve the claim. The end result was that ICBC paid over $100,000 more than it could have resolved the claim for, and also will have to pay double costs on top of that. The Supreme Court rules provide for an increase in costs where a party unreasonably failed to accept a reasonable offer to resolve the claim. In the last few years the number of claims where ICBC has taken a similar position has increased significantly. It appears to be an intentional plan to run up the costs and the only conclusion one can reach is that they’re doing so because they have easy targets to blame: claimants, or injured people, the courts and of course lawyers. It also allows them to hide their poor business practices because they can blame others and not take responsibility for their failed performance.

All of this supports the need to privatize auto insurance in British Columbia and get rid of the ICBC monopoly. At the end of the day, ICBC as a monopoly is just another form of indirect taxation of consumers in British Columbia. The profits it has made over the years has gone to the government’s general revenues and not been kept in the corporation. Both main political parties are guilty of this. The politicians do ICBC’s bidding to cover up its inefficient business practices and give it more tools to take away the rights of injured people in B.C. and so there’s no solution politically between either of the parties. The simple reality is ICBC should be privatized and an open market for competition for auto insurance should be in place in British Columbia. It works in other jurisdictions in Canada to lower auto insurance premiums; it should happen here.
Michael Yawney QC is a senior litigation partner at Nixon Wenger LLP, the North Okanagan’s largest law firm. He has been a member of the Association for Injured Motorcyclists (AIM) for many years, on the Board of Governors for the Trial Lawyers Association of British Columbia, is a member of the Canadian Bar Association and has represented many personal injury clients. The opinions expressed herein are the opinions of the writer and are based solely on his views and experience over the many years he has practiced personal injury law in British Columbia.

November 17, 2019

More ICBC Misinformation…

Personal Injury, Litigation, Blog

A recent court decision by Chief Justice Hinkson where the government’s unilateral changes to the Supreme Court Rules without the usual consultation with the legal profession and the judiciary was found unconstitutional has resulted in more political rhetoric, ICBC excuses and misinformation. The Attorney General David Eby responded to the ruling by alleging that the government would now be out $400 million in revenue and would no longer have a surplus. He also alleged that ICBC paid out $1.9 billion to law firms (as part of a smear tactic to mislead the public as to lawyers and judges being the problem, not the actions of ICBC!). We pay taxes to the government to fund it’s operations; to suggest that a court case means no government surplus is absurd and exposes the real basis for ICBC: indirect taxation!

This misinformation has to stop. ICBC’s own employees have said there is no dumpster fire at ICBC and that the losses claimed are not correct. ICBC regularly uses “numbers” it creates to lobby the government to do it’s bidding. For example, within the last year magically creating almost $700 million in “estimates for losses” with a stroke of a pen (by re-assessing claim exposures – allowing it to adjust up an exposure to create a picture of more financial loss). From the last financial statement published by ICBC in March of 2019, it has an arbitrary “change in estimates for losses” of over $1.2 billion. It also notes that it’s revenues are nearly $6 billion dollars with total assets of over $16 billion….yet it claims that law firms were paid $1.9 billion with the impression that they are sucking the corporation dry! This is simply misinformation to deflect responsibility! Neither Eby or ICBC have told you that litigated claims with law firms representing plaintiffs is only a small proportion of the claims it pays out in any given year; this isn’t stated because they want the public to blame lawyers, judges and injured people for the high cost of premiums and not tell you the real truth of it’s financial operation. ICBC doesn’t tell you how it has created millions and millions of unnecessary extra costs by refusing to deal fairly with claims; running claims to trial that should resolve and costing the corporation significant extra costs. I have many clear examples of this, in particular with two claims within the last year that went to trial; ICBC’s refusal to consider fair offers to resolve the claims has resulted in over $600,000.00 in unnecessary expense for the Corporation. That is only on two claims, there are many more examples of the same thing and it happens all the time. Right now ICBC’s strategy is to run every claim to trial to increase the costs to help continue the blame game and deflection of responsibility.

ICBC gets away with this because it is not accountable. It simply blames claimants, lawyers and judges…and doesn’t take responsibility. Ask yourself why we pay the highest rates in the country and why ICBC would lie about it’s financial performance? So it can continue to deflect responsibility and blame others… and carry on providing government with revenue that amounts to indirect taxation, while raising insurance rates.

Michael Yawney QC is a senior litigation partner at Nixon Wenger LLP, the North Okanagan’s largest law firm. He has been a member of the Association for Injured Motorcyclists (AIM) for many years, on the Board of Governors for the Trial Lawyers Association of British Columbia, is a member of the Canadian Bar Association and has represented many personal injury clients. The opinions expressed herein are the opinions of the writer and are based solely on his views and experience over the many years he has practiced personal injury law in British Columbia.

October 29, 2019

WHAT THE HECK IS HOTCHPOT??

Wills and Estates, Blog

“Her piece of cake is bigger than mine! It’s not fair!!” As a mother of 2 young children, this is something I hear on a regular basis. It drives me a bit crazy, but as parents, when it comes to our kids, we all know how important the concept of “fairness” can be.
Many parents fret over how they will equalize their wills where they have made unequal gifts, advances or loans to their kids over the years. Parents with the financial means sometimes advance money to a “financially dependent” child to help with living expenses or help them buy a car or house, to the exclusion of their other children who are “financially independent”. These parents often expect that when they pass away, the money they have advanced to their financially dependent child or children while they were alive will be considered advanced on account of the children’s inheritances, NOT separate gifts over and above their inheritances.
Have no fear, the “Hotchpot Clause” is here. The legal and accounting concept known as a hotchpot clause is available to deal with the equalization of the shares of the beneficiaries of a person’s estate where one or more of the beneficiaries has already received money from a parent during the parent’s lifetime. It prevents a beneficiary (usually a person’s child) from double dipping where a parent intended that any money they’d given to that child during their lifetime to be a pre-payment of an inheritance, instead of an advance above and beyond the intended inheritance.
The hotchpot concept is best illustrated by an example:
John and Martha Moneybags have 3 children, David, Suzie, and Barbie. John and Martha have an estate of $900,000.00. David, their eldest, suffers from an entitlement curse, and has never held a long term job or finished university. However, he can do no wrong in his dad’s eyes and over the past few years, John has advanced David $100,000 to fund his backpacking and skiing lifestyle. Suzie’s marriage recently broke up and her husband left her with 3 young children. John and Martha recently advanced $200,000 to Suzie to help her purchase a house. Barbie has a successful toy store business, and while not wealthy, she makes a good living.
John and Martha intend to have their $900,000 estate split equally when they die, but they want the money previously advanced to David and Suzie to be accounted for, such that Barbie gets 1/3 of their estate, including amounts previously advanced to David and Suzie. If John and Martha were to die in a plane crash today, their current wills state that their estate is to be divided equally among their 3 children, so each child would get $300,000 (1/3) each, which is not their intention.
Had John and Martha met with their lawyer before the plane crash, their lawyer could have updated their wills with a hotchpot clause, such that their estate would be considered to have been $1,200,000 ($900,000 + $100,000 advanced to David + $200,000 advanced to Suzie). Thus, when the estate was settled, Barbie would receive $400,000 ($1,200,000/3), David would receive $300,000 ($400,000 – $100,000) and Suzie would receive $200,000 ($400,000 -$200,000).
A hotchpot clause requires evidence of provable amounts advanced to beneficiaries, so it is very important for parents to keep good records of money provided to their children. Bad, or no book-keeping may render a hotchpot clause ineffective.
Where parents intend to split their estate equally amongst their children/beneficiaries, but have made loans, advanced funds for house purchases, or just given money to their children in unequal amounts while alive, their estate planning should include consideration of those gifts and loans, with proper evidence, and their lawyer should draft a hotchpot clause in their wills.

Elise Allan is a Partner at Nixon Wenger LLP who works extensively with individuals, assisting them in such matters as the purchasing and selling of real estate, preparing Wills, Powers of Attorney and Representation Agreements as well as obtaining Grants of Probate.

September 3, 2019

Builders Liens and Time Limits

Business Law, Litigation, Blog

Under the Builders Lien Act, contractors, sub-contractors, workers, and material suppliers are provided with two distinct types of liens. The first type of lien, known as a “builders lien” or a “lien against land”, is a lien against the land and buildings to which the construction professional have contributed labour or materials. The second type of lien, known as the Shimco lien (named after the case that first recognized such a lien in British Columbia) or the “holdback lien”, provides construction professionals with a lien against the holdback funds that should be retained by the person that is next highest in the construction pyramid (i.e. the funds that arise from the required deduction of 10% of the value or material as they are actually provided, or 10% of the amount of any payment made on account of the contract or subcontract).
The rights which flow from both the lien against land and the Shimco lien are powerful tools which enable unpaid construction professionals to seek compensation directly from the owner of the land to which they contributed labour or materials. However, there is a crucial catch: time limits must be respected in order for a construction professional to exercise these lien rights. If the time limits are not respected, lien rights are extinguished.
The Time Limits:
As a practical matter, if a construction professional has not provided any labour or materials to a construction site in 30 days, and payment has not yet been made by the owner, contractor, or subcontractor, that construction professional should consider having a conversation with his lawyer. As discussed below, for both legal and practical reasons, the process needed to exercise both a lien against land or a Shimco lien should be commenced as quickly as possible, as lien rights expire very quickly.
With respect to a traditonal builders lien / lien against land, the timelines that must be respected depend on whether the owner had hired a head contractor (meaning, a contractor that is engaged to perform substantially all of the construction work, or, in other words, a general contractor), whether there is an owner-developer or construction management relationship (i.e. the owner has direct contracts with all construction professionals), and whether the construction project is on a strata lot.
For contracts where the owner had hired a head contractor, construction professionals must file a document, entitled, “claim of lien”, with British Columbia’s Land Title Office, with respect to the land where materials or services were provided. The claim of lien document must be filed 45 days after the earliest of:
1. substantial completion of the head contract;

2. termination of the head contract;

3. abandonment of the head contract;

4. issuance of a certificate of completion for the head contract or any subcontract under which the construction professional had been retained; or

5. for strata lots, the date the strata lot is conveyed to the purchaser or the date that strata unit is occupied.
Similarly, where there is there is an owner-developer or construction management relationship, the claim of lien document must be filed 45 days after the earliest of:
1. substantial completion of the construction project;

2. abandonment of the construction project;

3. issuance of a certificate of completion for any contract or subcontract under which the construction professional had been retained; or

4. for strata lots, the date the strata lot is conveyed to the purchaser or the date that strata unit is occupied.

Though there are a variety of complications that arise from these timelines, the practical questions that should be asked are:
i) has a certificate of completion been issued (this will invariably be issued by a third party engineer or architect) with respect to any part of the project?
ii) has the general contractor completed, abandoned, or terminated its contract with the owner?
iii) has the construction project been completed or abandoned? and
iv) if dealing with a strata lot, has someone bought the lot is living in the unit?
If the answer to any of these questions is “yes”, and, as a construction professional, you are unpaid, your lien rights may be on the way to expiring, and you should quickly seek to speak with your lawyer.
Finally, even after a claim of lien document is filed, an action to enforce that claim of lien, along with an associated certificate of pending litigation, must be filed within one year of the filing of the claim of lien.
With respect to the Shimco lien, the Builders Lien Act provides no express timelines that must be satisfied. However, from a practical perspective, swiftness of foot in advancing the Shimco lien is critical, because the Shimco lien can only be advanced before holdback funds have been dispersed, and the strategic usefulness of the Shimco lien lies in the fact that it can be advanced even when the typical builders lien / lien against land has expired.
The law is quite clear that the Shimco lien is extinguished if the holdback funds have been disbursed before the lien is advanced. As stated by the British Columbia Court of Appeal, in Wah Fai Plumbing & Heating Inc. v. Ma, 2011 BCCA 26:
[40]           Shimco does not deal with these circumstances. Nor can the Act be interpreted to provide that where there is no holdback, or a holdback has been wrongfully paid out, a person whose land lien has been extinguished may later commence proceedings to enforce a lien against a nonexistent holdback.
[41]           The appellant argues there is no limitation in the Act for enforcing a lien against the holdback. It claims that proceedings to enforce a lien against a holdback may be commenced any time before the holdback is paid out, subject only to the six-year limitation period provided in s. 3(5) of the Limitation Act, R.S.B.C. 1996, c. 266. It argues further, citing s. 4(4) of the Limitation Act, that the amendment to the statement of claim in August 2006 to claim the holdback lien did not have the effect of commencing a new action, and its claim against the holdback should be considered to have arisen when it originally filed the writ and statement of claim in August 2002.
[42]           The appellant cites no authority for its suggestion that s. 4(4) of the Limitation Act should be given retroactive effect, and I see no basis in principle to so find in this case. In any event, it would not change the result: the appellant is not entitled to claim a lien against a nonexistent holdback.
Or, in other words, once the holdback funds are gone, they’re gone: The claim associated with the Shimco lien must be advanced before the holdback funds are paid out.
Considered together, the time limits associated with the liens provided under the Builders Lien Act are traps for the unwary. Whether considering a typical builders lien, or whether considering a Shimco lien, construction professionals have limited time to act to ensure that lien rights are not extinguished.
Christopher Hart is an Associate at Nixon Wenger LLP where he enjoys a wide ranging civil litigation practice, with a particular emphasis on estate litigation, commercial litigation, property litigation, and construction law.

August 28, 2019

Executors

Wills and Estates, Family Law, Business Law, Blog

In your will, the executor is the person you name to settle your estate after your death. The executor is responsible for, among other things, determining what your assets and liabilities are at the time of your death, safeguarding those assets until they are distributed to the beneficiaries, paying your debts and filing your tax returns. They are also required to gather information about your beneficiaries and family members, including confirming legal names and addresses and identifying anyone under the age of 19. Your executor will apply for a grant of probate if one is required and ultimately distribute your assets according to your wishes.
It is important to choose your executor carefully to make sure your estate is settled efficiently and effectively. An ideal executor is someone who is organized, will deal with your assets and relatives objectively, and has loads of patience. Having an executor who lives in the same area as you is helpful but not necessary. It is also important that your executor survives you and has capacity at the time your will comes into effect.
Before appointing someone as your executor in your will, it is good practice to confirm that he or she is able and willing to take on that role. An alternate executor should be appointed in case the first executor can’t act.
There are a few circumstances where the intended executorship might fail:
1. If you die before you have prepared a will, it is called dying intestate. The court must appoint someone to administer your estate. The court will look to who has the most interest in the estate – typically your closest surviving family member. (For more information on dying intestate, see Dying Without a Will

2. If the executor named in your will declines, dies or is incapable of taking on the role, and you have no surviving or willing alternate executors, the court must appoint someone to administer your estate in accordance with your will. This person might not be permitted to act as administrator without posting an estate bond to protect creditors and beneficiaries who minors or incapable in the event the estate assets are administered improperly.

3. If your sole or last surviving executor (“Your Last Executor”) received a grant of probate and then becomes incapable or dies before finishing his or her duties, the executor appointed by Your Last Executor in his or her will may be in a position to take over the administration of your estate. This is called the “chain of executorship” and it will not apply to all cases where Your Last Executor can no longer act before the administration of the estate is completed.

4. The chain of executorship is broken if Your Last Executor left no will or did not appoint an executor or has no surviving willing and able executors. In those circumstances, the person with the most interest in your estate – typically a beneficiary – can apply to be substituted as the administrator of your estate.
Be sure to review your will regularly and be aware of the health and personal circumstances of your primary and alternate executors. If one or all of your executors are no longer able to act, make arrangements to update your will.

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.

August 2, 2019

Avoid Probate Fees

Wills and Estates, Family Law, Business Law, Blog

Probate fees are fees paid to the province to obtain a Grant of Probate from the British Columbia Supreme Court when a person dies. The fee is based on the value of the deceased person’s assets and can be generally estimated at 1.4% of the value of the assets. There are some adjustments, but the 1.4% provides a small overestimate of the fee. A Grant of Probate is generally required to enable the Executor to sell or otherwise deal with the deceased person`s assets.

However, not all of a person`s assets while alive may form part of that person`s estate and require a Grant of Probate to enable transfer. For example, an RRSP, RRIF, or TFSA that designates a beneficiary who survives the deceased person, will transfer directly to that beneficiary and not form part of the deceased`s estate that is subject to probate. Life insurance naming a beneficiary will go to the named beneficiary and not become part of the estate. And assets that are owned with one or more other persons as joint tenants can pass to the surviving joint tenants rather than to the estate.

Owning assets as joint tenants is a common circumstance for spouses. Most couples will own their home as joint tenants, have joint bank accounts, and often own vehicles jointly. For most couples*, it makes sense to also name the spouse as beneficiary for life insurance, RRSPs, RRIFs, and TFSAs. Consequently, upon the death of one spouse, all assets may transfer to the surviving spouse without the need to obtain a Grant of Probate.

Given the savings of time and money in avoiding a need for probate when the first spouse dies, we find that many surviving spouses are interested in adding children to title to a home or recreational property, or to bank accounts, in an effort to avoid future probate fees. While that can be effective to avoid probate, the transfer of ownership has many consequences that may not be intended.

Adding another person to title, or to a bank account, is a transfer of ownership. If the asset were a recreational property or an investment account, the transfer will be a disposition for income tax purposes and may trigger an obligation to pay capital gains tax. If you add a child to title to your principal residence and that child does not live in the residence, capital gains tax could become payable on part of the future increase in value of the home as part of the principal residence exemption may be lost. Once ownership is changed, control is lost, such that any future decision regarding a home or recreational property, including whether or not to sell or mortgage it, will require agreement of all owners. The asset would also be at risk of a claim by any creditors of the person that was added as an owner as well as claims by that person’s spouse in a family law claim.

Notwithstanding the consequences of adding a joint owner to an asset, there are circumstances where it is a good planning option. It is most important to clearly understand both the intended and unintended consequences of any change of ownership of any asset, and to clearly document the intent of any change. If one child is added to a bank account, should the balance of that account go to that child upon your death or do you intend that the balance be split among all your children. Future disputes can be avoided or minimized if intentions are well documented. A failure to properly document intentions often results in lengthy disputes that are expensive and permanently damage family relationships.

Probate fees are significant enough that it makes sense to at least consider options to avoid the need to obtain a grant of probate. But any changes in ownership should only be undertaken after careful consideration of the consequences of such change within the context of a person`s overall estate plan, and taking into account family dynamics that may create greater risks. All of these factors require a good conversation with your legal advisor to ensure any effort to save probate fees does not create problems that will be much more expensive and damaging to address.

*There are exceptions as each family is unique. You should seek legal advice that reflects your individual circumstances when planning for the eventual disposition of your assets upon death.

Tom Christensen, Q.C., has a general solicitor’s practice, assisting clients with business matters, wills and incapacity planning, the administration of estates, and real estate conveyancing and financing matters. He has a particular interest in assisting families with the transition of assets from one generation to the next through effective personal and business succession planning as well as resolving estate disputes outside of court.

July 12, 2019

The Ironically Named “Minor Injury Cap”

Personal Injury, Litigation, Blog

As of April 1, 2019 the BC NDP government has brought into force legislative changes to the way motor vehicle accident claims are handled in British Columbia.
Under our old civil law system a person injured in a motor vehicle accident was entitled to claim for losses he/she suffered due to the negligence of the other driver. This included damages for pain and suffering, income loss and rehabilitation expenses. This concept has been around for hundreds of years and is focused on making the victim “whole.” Each aspect of the victims claimed loss had to be proven based on the rules of evidence. The majority of such claims would settle / resolve prior to going to trial on a compromised basis. In fact, the majority of claims were so small that they would resolve directly between the accident victim and the insurance adjuster without any involvement of lawyers at all.
This system was effective and fair for most years and ICBC was profitable. It was a cash cow for many BC governments who sucked billions of dollars out of the company into general tax revenues. In the recent past, in part due to mismanagement within ICBC, losses began to pile up. The NDP has blamed personal injury lawyers for this sad state of affairs. This has given the NDP government a reason to put into effect massive changes, influenced by the bureaucrats running ICBC.
This new program, effective as of April 1, 2019, has been masterfully marketed as a new system to process just the “minor claims” effectively and without the need for lawyers. Such minor claims can only receive a maximum of $5,500.00 for pain and suffering. Any other claimed losses associated with the minor injury would be decided by an online adjudicator, without an in person hearing and no set rules of evidence.
On learning of the details of this new online means of “rough justice” for minor claims, I would suspect most people wouldn’t be too alarmed. After all, this only applies to minor claims. How much loss and damage could arise from an accident where the victim has suffered bruising or a sprain or slight whiplash that has resolved after a few months? I would suspect public sentiment supports that such minor claims should be resolved online and free up our courts for more substantial claims that deserve our full justice system. It all sounds reasonable…
Well here is where the masterful marketing comes in. What is being promoted to BC citizens as a “minor injury cap” system, is really a means to prevent 80% of all BC motor vehicle accident claims from proceeding to our civil courts. In other words ALMOST EVERYTHING IS A MINOR INJURY! The new legislation is difficult to decipher, but it appears to define a minor injury as; any abrasion, contusion, laceration, sprain or strain; pain syndrome; or any psychological or psychiatric condition; unless it can be shown that that condition has resulted in a serious impairment or permanent serious disfiguration. A serious impairment means that the condition lasts greater than 12 month; that the accident victim cannot do the essential tasks of employment or study (despite accommodation); and the condition is not expected to improve substantially. The legislation also identifies any whiplash injury, TMJ (jaw) injury, or a concussion (that does not result in incapacity) as being automatically a minor injury.
Based on the above definition of minor injury, it would appear that there will be very few injuries that do not meet that definition. Most injuries will heal within 12 months, and it is the continuing chronic pain that is so disabling and interfering in victims’ lives. For instance, if you have a chronic pain syndrome arising from soft tissue injuries received in an accident, (not whiplash as those are automatically considered minor) even if those injuries continue well past 12 months, it will be considered minor if your employer can accommodate you at work. It will also be considered minor if your doctor is of the view that in the future through rehabilitation, there will be improvement. In my experience as a personal injury lawyer for over 20 years, most injuries that have resulted in a chronic pain syndrome would allow the accident victim to still perform some of his / her work duties, (albeit pain) and typically have a prognosis that the condition may improve in the future through various recommended attempts at rehabilitation. Such injuries can be devastating for people and can last a very long time. Under this new regime, such claims will be considered minor. In fact most claims will be categorized as such. This will mean that such accident victims will be subject to the online adjudication through what is called the Civil Resolution Tribunal (CRT), and will not be able to seek fair compensation through our courts. This is a massive change which B.C. public is currently unaware.
Unfortunately, this system of “minor injury caps” is a prime example of government double speak. The government will say that this new regime that is now in place since April 1, 2019 only applies to minor injuries, what they haven’t told you is that…ALMOST EVERYTHING IS A MINOR INJURY!

James Cotter has been a trial lawyer for over 23 years, practicing in Personal Injury, Wills & Estates Litigation, Civil Litigation, Municipal and Health Law.

May 24, 2019

What happens to my pets?

Wills and Estates, Blog

Recently, the Public Guardian and Trustee’s Office, a provincial government agency, contacted friends who operate Freedom’s Gate Equine Rescue Society to ask them to take in and rehome several horses that were owned by a person who had passed away. What this call means to me, as a lawyer, is that the deceased died without leaving a Will, had no real family members who were willing or able to help with the estate and did not make provisions for the horses in the case of death.
A Will is the legal document in which you appoint someone to look after your assets and ultimately distribute them to your beneficiaries after you die. In it, you name the person who should be in charge of your estate (your Executor, also now known as your Personal Representative), and you set out who gets your assets, including real estate, personal effects, bank accounts and even your livestock and pets. If you die without a Will, any family member could apply to be the person in charge (Administrator or Personal Representative) and provincial legislation sets out where your assets will go. If you are married, your spouse does NOT have the automatic right to handle or receive your estate. In the case I mentioned above involving the horses, the deceased apparently had no family members to help with these tasks, so the Public Guardian and Trustee had to become involved in managing the estate and dealing with the assets.
In a Will, my clients typically name an executor, an alternate, a guardian for their underage children, and list of beneficiaries who will receive their estate. In a situation where someone dies leaving a spouse and/or children, or perhaps other family members (such as siblings, if not married), my clients will often name one or more of those family members in a Will as Executor. If they die without a Will, those family members may be willing to step up and become the Administrator. The Executor or Administrator applies to the Court to be approved and appointed as the Executor or Administrator. Once appointed, they have the full power and authority to sell or distribute the deceased’s assets.
About 25 years ago, I was encouraged by my veterinarian to put clauses in Wills about pets, as she was tired of family members bringing them to her to be euthanized….perfectly healthy dogs and cats that family did not want. It started with a generic clause directing the Executor to give Fluffy to such and such a family member or to find a good home for them, preferably with family or a friend. However, our pets and livestock cannot wait for a Will to be located and the court appointment process to occur. They need to be cared for immediately. If someone has animals, they should try to arrange in advance for someone to feed and water their pets at the very least.
If the deceased ran a business involving animals (such as dog training or horse boarding), it is essential that arrangements be made for someone to look after those animals, to contact owners to offer them the choice to make alternative arrangements for their pets, and to respond to business calls. Hopefully, where there is a business involved, the deceased made arrangements for someone knowledgeable in the business to help out immediately.
Instructions regarding pets can be very detailed and are best not left in a Will. Your Will should state where your assets are to go, but it should not contain practical concerns such as what type of food Fluffy prefers and how often you feed her. In the case of pets, it is often better to leave those detailed instructions in a letter to your executor to be kept with your Will or with a copy of your Will where you keep your important papers at home. Better yet, if your Executor is a family member or friend, give them a copy of these instructions from time to time, so they know exactly what to do without delay and who to contact about your animals.
I have a client who is the perfect example of the worst case scenario. She has no spouse and no family (her parents and siblings are deceased). She had no children, but many furbabies, such as dogs, cats, and horses. I have helped her do her Will, with basic instructions as to the sale and distribution of her assets to distant relatives and charities. Aside from her Will, she has been working on a list of information about her assets and pets that will come in very handy for her Executor – everything from who to call at her bank, her account numbers, her various club and association memberships, who gets certain personal effects and art work, a short history of each pet, feeding instructions, who to call about certain registered pets and how to deal with her rescued animals.
When you are dealing with live beings, you need to make sure someone is available immediately. Even without the formal court appointment, the Executor is permitted to attend to those matters that are necessary after someone dies – such as arranging a service, securing their home, cancelling unnecessary utilities, caring for pets and livestock, among other things. Your Executor will need to know plenty of information about you that is not normally set out in a Will. This equally applies to the person you appoint by Power of Attorney to handle your financial affairs if you are injured or ill.
Without a Will, her assets will not be managed by the appropriate person and they will not go to those relatives and charities that she prefers. With a little bit of work in advance, she can rest easy, knowing that her assets will be properly distributed and her furbabies will be well cared for in loving homes.

Leanne Rutley has been a lawyer for 30 years and practices with the firm of Nixon Wenger LLP in Vernon, BC. She has extensive experience dealing with the administration of estates and the care of furbabies. She is also a Director/Foster Mom for Colour Me Canine Rescue Society.

May 9, 2019

What exactly did they mean?

Wills and Estates, Blog

People, being people, will sometimes make errors in communicating. They may use unclear language, or use words that have a special reference known only to themselves, or will do any one of number of things that would cause other people to turn to them politely and ask, “What?”
When the time comes to follow the instructions of a will, however, if there is an ambiguity in it, the best person, and the best witness, is no longer available to question.
Interpreting ambiguous language, whether in a Will or other document, is called “construction”. Courts are very careful when asked to “construe” a Will. They want to follow the instructions of the deceased, and don’t want to invent or create those instructions or get them wrong. But there are tests that need to be followed in determining what the testator meant to say. You can use a court proceeding to translate a will that is unclear.
The primary rule, of course, is that the words used in a Will need to be given their plain and ordinary meaning. If your Will provides your “bed” to someone, that word almost certainly means the piece of furniture that you sleep on. It would be a weak argument for someone to point out that “bed” could also refer to that part of your garden where flowers are planted. The ordinary meaning will obviously win.
However, sometimes the ordinary meaning won’t help you. In his own Will, William Shakespeare famously left his “second best bed” to his wife, Anne Hathaway. It has been a controversial bequest for centuries – what did he mean by that? Which bed? How was his executor supposed to choose?
For resolving ambiguities, two schools of interpretation exist. The first is what’s known as the “four corners” rule, which declares that the only information you are entitled to use to interpret a Will must come from within the document itself. The second is called the “armchair” rule. This permits you to imagine yourself, subjectively, in the position of the deceased – to see what he or she saw, use evidence of their surroundings or circumstances in an effort to figure out what they really meant when they wrote their Will.
In British Columbia, after much judicial debate and consideration in case law, we employ a sort of restricted, commonsense armchair approach. That approach, essentially, directs a court to:

1. Read the will. If it is not ambiguous, then there is no problem. The Court ought not to admit any extraneous evidence to clarify language that doesn’t need clarification.

2. However, there is also no need to operate in a vacuum. If there is some information that is obviously required to define a term or that would have some effect on the plain meaning of the Will, then that would be acceptable.

3. Finally, if the Will is truly ambiguous, Courts may look to outside circumstances for help, and admit any extraneous evidence as needed.

This approach is in accord with section 4 of the Wills, Estates and Succession Act, which provides in part:

Extrinsic evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless

(a) A provision of the will is meaningless,

(b) A provision of the testamentary instrument is ambiguous

(i) On its face, or

(ii) In light of evidence, other than evidence of the will-maker’s intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or

At the end of the day, if no-one can figure out what the Deceased meant to say, then the Courts will be able to look at whatever they need to look at in an effort to figure it out. This means they can take evidence from the lawyer who helped draft the will, financial or other advisors, family members who may have heard the Deceased talking about his or her intentions, and even the habits and practices of the Deceased person. Other than asking the Deceased themselves to clarify, this is the best we can do.
By the way, with respect to Shakespeare, although there is still debate on the subject, sympathetic scholars tend to agree that that leaving his “second best bed” to his wife was not intended to be an insult, but was rather intended as a gesture of affection. The best bed in the house was the guest bed. The second-best bed was the one she was used to, the one that Shakespeare and his wife actually shared.
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.

April 25, 2019