Family Law – Parenting Time and Responsibilities

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On separation, a couple must decide how they will share time with their children and what responsibilities they will have in respect to each child. The implications to the couple will depend on whether legal proceedings are under the federal Divorce Act or the BC Family Law Act. A couple may only proceed under the Divorce Act if they are married; however, anyone can proceed under the Family Law Act for most matters dealing with children.

Terminology

Under the Divorce Act, the proper terms to describe parenting rights and responsibilities are “custody” and “access”. The term “custody” refers to with whom the child will live and the rights and responsibilities regarding the care of the child. The term “access” refers to the time a parent without custody, or another relative, is entitled to spend with the children.

Under the Family Law Act, the proper terms are “parenting responsibilities” and “parenting time”. The term “parenting responsibilities” refers to the ability to make decisions for the child. Guardians may share these responsibilities or one guardian may have these responsibilities on his or her own. The term “parenting time” refers to the amount of time that a guardian spends with a child and may also include smaller, or day-to-day, decision making while the child is in the care of that guardian.

Determining Parenting Time and Responsibilities

Parents may reach an agreement as to how they will share responsibilities and how much time they will spend with the children or they may apply to Court to receive an Order. A Court will determine these issues by considering what is in the best interests of the children. A Court may determine that it is in the best interests of the children to give shared rights and responsibilities to both parents, to only one parent or a combination of both. How these issues are divided may affect the amount of child support that each party is responsible to pay.

In many communities, before a parent can go to Court, he or she must attend a Parenting After Separation Course. This course discusses the effect of a couple’s separation on the parents and the children.

 

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Personal Injury – Work Related Injuries

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Whether it is a result of a slip and fall, an assault, a motor vehicle accident, or another type of accident, many people suffer injuries while working. If a person in British Columbia is injured while working, the worker should be able to recover some of their losses related to the injury. If the injured worker dies, the worker’s dependents may be able to recover losses on behalf of the deceased.

When a worker is injured, the primary question that will determine the type of compensation that can be claimed is whether the party that caused the injury or death was working at the time.

Types of Claims

In British Columbia, a person who is working at the time of the injury cannot make a claim against another individual working at the time of the accident or his or her employer. Instead, the injured person must claim through WorkSafeBC to recover any losses that he or she suffered.

However, if a person is injured while working and the other party involved is not working at the time of the accident, the injured party may be able to choose to recover any losses through WorkSafeBC or through a personal injury claim (i.e. a Court action).

A WorkSafeBC claim will compensate you for part of your wage loss or future income loss while a personal injury claim provides compensation to the full extent of all provable losses. In addition, a personal injury claim allows you to make a claim for pain and suffering, which is not compensated under WorkSafeBC.

Making the Choice

If the option is available to you to make a claim either with WorkSafeBC or to proceed with a personal injury claim, a lawyer can help you determine the best option. You must make this choice within 90 days of when the injury occurred. However, if you choose to proceed with a personal injury claim, you can also preserve your right to compensation through WorkSafeBC by filing the appropriate materials within one year of your injury. You may want to preserve your right to compensation in case your lawsuit is unsuccessful or you receive less money than you would have received through WorkSafeBC.

 

For any further questions regarding work-related injuries or to schedule an appointment with a litigation lawyer click here.

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Estate Litigation – Coping With an Unfair Will

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Sometimes a loved one who passes away does not provide proper financial support for certain people under his or her Will. For example, a parent may provide unequally for his or her children or may fail to adequately care for a dependent individual suffering from a mental or physical disability. This may leave those who relied on the deceased during his or her life without proper support. Although a person can generally dispose of his or her property on death as he or she wishes, there are certain obligations that a will-maker has to those who may rely on him or her for support. If a will-maker does not provide for these people, there may be a way to apply to Court to vary or change the unfair Will.

Who Can Vary a Will?

Certain family members who were excluded altogether or not fairly provided for in a Will can make an application to vary a deceased person’s Will.  Under the British Columbia Wills, Estates and Succession Act, only a spouse or a child of the deceased can make an application to vary a deceased person’s Will. Under WESA, “spouse” means a person who either was, at the time of death, married to the deceased or living with the deceased in a marriage-like relationship for at least two years.

Considerations in Varying a Will  

There are time restrictions to when an applicant can apply vary a Will and certain factors that may affect an applicant’s ability to successfully vary a Will. For example, an applicant must commence a Court action to vary a Will within 180 days from the date that a Court issued a grant of probate or administration.

A Court will consider the will-maker’s reasons for not providing, or not adequately providing for, the person seeking to vary the Will. For example, the will-maker’s obligations on death may be less if a child refused, without legitimate reason, to have a relationship with his or her parent. The Court will also consider whether the will-maker chose to make gifts to this person during the will-maker’s life instead of within his or her Will.

There are also circumstances in which the will-maker’s obligation to his or her spouse or children will be greater. For example, a will-maker will have a greater responsibility to a disabled spouse or child. The financial need of the person seeking to vary the Will may also affect the will-maker’s responsibility to the applicant.

 

For any further questions regarding unfair Wills or to schedule an appointment with a litigation lawyer, click here.

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Family Law – Spousal Support in British Columbia

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When a couple is separating, one issue that may need to be addressed is whether one of the people should receive spousal support. Spousal support attempts to meet the needs of a spouse who is financially dependent on the other spouse. A person may apply for spousal support if he or she was married, living together in a marriage-like relationship for at least two years or for less than two years but the couple had a child together. The separating couple may resolve the issue of spousal support by agreement or in Court. The agreement or Court Order may require that one spouse pay support in the form of a regular payment or a lump sum amount.

Are You or Your Spouse Entitled to Spousal Support?

Unlike child support when children are involved, spousal support is not something that always results from a relationship breakdown. The person who is seeking spousal support must first be entitled to receive it. Entitlement is based on the objectives of spousal support, which are to:

  • encourage self-sufficiency;
  • address economic advantages or disadvantages arising from the relationship or the separation;
  • reduce any financial hardship arising from the separation; and
  • address any financial inequality resulting from caring for the children of the relationship.

In considering these objectives and whether a person is entitled to spousal support, the Court will look at:

  • who is responsible for child care and whether this impacts that person’s ability to earn income;
  • decisions that the couple made during the relationship that may have limited career opportunities for one of the spouses; and
  • any economic hardship that resulted from the separation.

Amount and Duration

Once the Court determines that the person seeking spousal support is entitled to receive support, it must determine how much spousal support the person will receive and for how long he or she will receive it. The Spousal Support Advisory Guidelines can help determine the appropriate amount of spousal support. However, the Guidelines are only guidelines and a Court does not have to follow them. The amount and duration of the spousal support will depend on:

  • each spouse’s financial situation;
  • the length of the relationship;
  • the roles that each spouse occupied during the relationship; and
  • whether the spouse seeking spousal support needs any training to become self-sufficient.

Time Limits

A person applying for spousal support under the Family Law Act must do so before two years has passed since either receiving a divorce or, if you were unmarried, since the date of separation.

A person may only apply for spousal support under the Divorce Act if he or she was married. Under the Divorce act, there is no time limit to apply for spousal support.

 

For any further questions regarding a separation or to schedule an appointment with a litigation lawyer, click here.

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Personal Injury – Accidents involving Pedestrians

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A pedestrian may be partially at fault for the accident if he or she was not acting in a safe manner. For example, a pedestrian may not look before crossing at a cross walk or may cross the street outside of a cross walk. If a pedestrian is found to have acted unreasonably in the circumstances, he or she may be found to be contributorily negligent and the pedestrian’s damages could be reduced.

In certain cases, ICBC may deny a pedestrian’s entitlement to any damages. For example, where the pedestrian was jaywalking and the driver did not have an opportunity to avoid hitting the pedestrian.

Medical and Rehabilitation Benefits

Under Part 7 of the Insurance (Vehicle) Regulation, ICBC will provide certain insurance benefits to pedestrians injured in an accident irrespective of who caused or contributed to the accident. These no fault Part 7 Benefits may pay for expenses such as physiotherapy, medical equipment, and medication. The maximum that ICBC will pay under these Benefits is $150,000.

If you need any legal advice regarding an accident, please click here to contact us.

 

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Family Law – Property Division: What about Season Tickets?

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The recent Alberta court decision in McLeod v McLeod addressed the issue of whether season tickets to the Edmonton Oilers that were in the name of only one spouse was part of the marital property.

In this case the couple had determined an acceptable amount for spousal support and were proceeding with a divorce. However, the divorcing couple could not reach an agreement on how to divide their beloved Oilers season tickets. As the divorce would not be finalized for some time, and the hockey season was quickly approaching, the wife applied to court for an interim property order. An interim order is a temporary order that is made before the divorce is granted.

The tickets were only in the husband’s name and the couple had used them for 11 years, primarily for family enjoyment. The husband refused to allow the wife to use any tickets for the 2017/2018 season, arguing that they were not part of the matrimonial property because, as a season ticket holder, he was only entitled to a right to purchase the tickets. Despite this argument, the Court held that the season tickets were matrimonial property and would have to be shared between the separating couple.

The Court ordered that, for the 2017/2018 season, the couple had to equally share the season tickets. Under the terms of the Court order, the couple were required to alternate choices for game tickets, including playoff tickets.

 

If you need any legal advice regarding property division, or any other family law inquiry, please click here to contact us.

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Estate Litigation – Loss of a Family Member Conflicts

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When dealing with the loss of a family member, there can often be conflict or tension with other people who were also involved with the deceased. In such cases, estate litigation issues may arise because certain people may feel that they have not received a fair portion of the estate or they claim that other people took advantage or put pressure on their loved one. Estate litigation claims affect or involve all beneficiaries, trustees or executors.

When Does an Estate Litigation Claim Arise?

An estate litigation claim may arise to deal with a number of issues, including:

  • claims suggesting that the deceased/will-maker lacked mental incapacity when making a gift in a will;
  • elder abuse arising from undue pressure or influence that have resulted in unfair or inequitable bequests;
  • disinheritances of children or spouses that may or may not be upheld by a Court;
  • insufficient or unfair bequests to children and spouses; and
  • contested trusts.

Resolving the Issue

Estate litigation often increases conflict and tension between family members. For this reason, although it may not always be possible, it is important to resolve these issue as quickly as possible. Instead of litigating these claims in Court many families choose to resolve an estate litigation issue through alternative dispute resolution, such as mediation.

 

If you need legal advice regarding estate litigation click here to contact us or to schedule an appointment.

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My Spouse and I are Separating, When Can We Get a Divorce?

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When Can I Apply for a Divorce?

Many people believe that a divorce can happen overnight. However, getting a divorce can be complicated and does take some time. In Canada, a couple can only get a divorce if there has been a breakdown of the marriage. There are three ways to show that a marriage has broken down: you and your spouse have lived separate and apart for at least one year before you apply for a divorce; adultery; or physical or mental cruelty.

The most common type of divorce is one that results from living separate and apart for one year. It can sometimes be difficult, more time consuming and expensive to prove that your spouse committed adultery or was physically or mentally cruel. If the court finds that you forgave your spouse’s behaviour, you will also be unable to receive a divorce based on adultery or cruelty.

Separation

Sometimes when a couple decides to separate, they may not be able to move into separate houses right away. In some cases, separation can occur while you are still living with your spouse. However, you must not be living as a married couple and you must have the intention to separate. There are a number of factors that may determine whether you are living as a married couple including whether you are sleeping in the same bed, eating meals together, sharing finances, or engaging in activities as a family.

What Else Do I Need to Do to Get a Divorce?

Before you can get a divorce, you must show that you have made reasonable arrangements for the support of your children. “Reasonable arrangements” includes reaching an arrangement for the payment of child support. At the time you apply for a divorce, you may also wish to address how you and your spouse will divide parenting responsibilities, whether spousal support is claimed, and how you and your spouse will divide your property.

 

If you need legal advice on this subject or any other law related inquiry please contact us.

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Injured by a Slip and Fall? Personal Injury

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Injured by a Slip and Fall?

 People often suffer injuries when they slip and fall on another person’s property.

Slip and falls can result from many different scenarios: weather conditions could make a walking surface wet or slippery; an unsafe walking area could be poorly lit; a floor or sidewalk may be uneven due to wear and tear that has not been repaired; an area carpet or mat at a store entrance could be rippled and pose a tripping hazard to those entering the store; merchandise in a store may have fallen and caused a slipping hazard on the aisle.

The Occupier’s Duty

An occupier includes the owner or any person or company that is responsible for a property. Occupiers must keep premises in a reasonably safe condition for those entering upon or using the property. This duty does not require the occupier to keep the property in perfect condition.  The law requires that the occupier act reasonably to ensure the safety of visitors on the property.

If an occupier is negligent in keeping the property in a reasonably safe condition and, as a result, a person is injured then the occupier can be sued for damages.

Seek Legal Advice

If you suffered injuries from a slip and fall, you should consult with a lawyer to understand your legal rights including the time limits to bring a claim and the compensation that could be claimed.  Depending on the specific nature of your injuries, your claim for damages would include your out-of-pocket expenses for medical treatments or rehabilitation, compensation for your pain or suffering, any loss of income and the cost of any future medical care or therapy.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Engagement Ends. Who Gets the Ring? Family Law

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You have been in a healthy relationship for the past 2 years.  It is finally the time to ask the big question.  You present your significant other with a beautiful engagement ring which they, in turn, accept.  The wedding is scheduled for next year.  However, before the wedding ceremony takes place the relationship sours.   You and your significant other blame each other for the relationship ending.  You have asked your ex-partner for the return of the engagement ring.  Your ex-partner refuses its return claiming it to be a gift.

Who has a better claim to the engagement ring now that the relationship has ended?

In a recent British Columbia case [S. (P.) v. R. (H.), 2016 BCSC 2071], the court held that in accordance with the law in British Columbia if a gift is determined to be made in contemplation of marriage and the marriage does not take place, then the gift must be returned.

An exception to that rule comes in the form of an absolute gift.  If it can be established through the evidence of the case that the engagement ring was intended to be an absolute gift, than the ring will not be returned to the one who bought it.

Now, what if the relationship ends due to the conduct of only one of the parties?   This case tells us that fault does not factor in the decision one way or the other in British Columbia.  At paragraph 71 of that Court decision, the court stated “Fault for the termination of the engagement does not enter into the analysis.”  The test is whether the ring was an absolute gift or a gift in contemplation of marriage.

If you need legal advice on this subject or any other law related inquiry please contact us.

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