Your friends talk you into taking golf lessons.  They even manage to convince you to go out for a real round of golf.  You find yourself in a group of four, with one friend and two others that you do not know.  Everyone besides you claims to be an experienced golfer.

The round begins and everything is going fairly well (besides your constant miss-hits on the ball).  One of these miss-hits results in your ball barely making it off the tee-box.  You quickly move up to your ball and take one practice swing.  After your practice swing you see that one of the men in your four-some that you do not know is slightly ahead of you.  You do think to yourself that this may not be the safest place for him to stand but you don’t say anything.  The other man does have his eyes on you but he does not say anything either.  You take your triumphant swing and look down the fairway to see where the ball ended up.  To your surprise you do not see anything but rather you hear something.  You hear the yelp of a man who has just been struck in the face with a golf ball.

He is now suing you claiming that you were negligent.

The standard of care expected of a sportsman is what would a reasonable player in his place do or not do.  This test was cited in the British Columbia case Herok v. Wegrzanowski (1985 CarswellBC 2487).

Another BC Court decision stated as follows:

“Although there are some risks incidental in the game of golf, players must take care not to hit anyone because of the obvious danger of injury.”

[Finnie v. Ropponen, [1987] B.C.J. No. 448]

There are many considerations that must go into this “reasonable player” analysis, all of which cannot be discussed in this blog.  However, one pertinent consideration given the above facts is the experience of the players.  As an experienced player, one is expected to know how to play the game safely.  This does not mean that an inexperienced player is free from liability.  The inexperienced player knowing that his or her shots are likely to be sporadic must take caution when swinging a club.

In order to reduce your exposure to liability, you should not swing your club until the rest of your group is alongside or behind an imaginary line that extends straight at 180 degrees from where you have lined up to take your shot.

Given the facts above, it is likely that the inexperienced golfer will be held liable in negligence and responsible for the injured person’s personal injury damages.  The man who was hit will likely be found to have been contributorily negligent as well.  This is because, as an experienced golfer, he should have known not to have been standing ahead of an inexperienced golfer who was about to swing.

If you suffer injuries on the golf course due to the actions of another be sure to contact us for legal advice.

With summer in full swing, many people find themselves enjoying time on the water in boats.  Although most boating endeavours are fun filled family or friend adventures, situations can arise in which legal liability for personal injuries can ensue.  For example, what is the liability of the boat captain when one of their invited guests accidentally falls in to the water and is injured or dies?  The Courts have held that a boat captain owes a duty to take reasonable care to rescue a passenger who falls overboard [Horsley v. MacLaren [1972] S.C.R. 441].

The boat captain is expected to perform a rescue attempt that would be reasonable under the circumstance.  Boat captains are expected to be aware of the recommended rescue procedure for a passenger that has fallen overboard but are not expected to execute the rescue to a standard of perfection.

The standard of reasonable care exercised by the boat captain must, as stated in Horsley, be measured in light of the immediate and pressing circumstance.  As long as the boat captain acted reasonably in the circumstance the boat captain will be relieved of liability for the passenger’s injuries or death.

With that established, can legal liability arise if one of the other passengers invited onto the boat is injured or killed while attempting a rescue of a passenger who has accidently fallen overboard?  If it can be established that the boat captain has by his or her fault created a situation of peril, they must answer to any person who attempts to rescue the passenger who has accidently fallen overboard.  If the rescuer is injured or killed as a result of this attempted rescue, they can recover damages from the person that created the situation of peril.

It is important in this circumstance to delineate between the situations of peril that the boat captain has created versus the general situation of peril that comes with a person accidently falling overboard.  The boat captain would only be held accountable to the rescuer for injuries or death if it could be established that the boat captain failed to undertake a rescue attempt or did so in a negligent manner.  In other words, the liability of the boat captain to the rescuer stems from the creation of a new situation of peril created through the boat captain’s negligent rescue attempt of the passenger who has accidently fallen overboard.

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

Squatters Rights in British Columbia

You find out that you are the Executor of the Estate of your Uncle John who lived in British Columbia.  Uncle John owned a vacant parcel of land in the interior.  Unfortunately, when you get to the property to inspect it, you discover that squatters are living on the property. The squatters say that they have been on the property since 1995. You want to know the Estate’s rights to the land and whether the squatters have any rights.

The law relating to squatter’s rights is titled “adverse possession”.  Squatter’s rights allows an individual to gain possession of land that is not actually owned by that individual.

In some provinces, squatters can acquire rights if they can show that they continuously used the land for a prescribed period (as may be set out in provincial legislation), that the squatters used the land in a way that is contrary to the true land owners intended use of the land, and that the true land owner was dispossessed of the land.

The good news for the Estate is that in British Columbia it is no longer possible to acquire land through adverse possession by virtue of section 28 of the British Columbia Limitations Act (unless the right to that land by adverse possession existed before July 1, 1975).

In other words unless the squatters could establish that they were in adverse possession before July 1, 1975, they have no rights to the Estate property.

Here, the squatters were in possession only since 1995 so they have no rights to the property.

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

My Partner and I are Separating, Do I Need to Pay Child Support?

Introduction

A parent has an obligation to help financially support his or her children. When two people who have had a child together separate, there is a responsibility to pay child support regardless of whether the parents were married. A step-parent may also be responsible for paying child support. Although a parent will generally be responsible for paying child support, there are a number of factors that may affect how much you have to pay and for how long you have to pay.

How Much Child Support will I have to Pay?

There are guidelines that generally determine how much child support you will have to pay. These guidelines are called the Federal Child Support Guidelines. The amount you will have to pay depends on how much money you make and how many children you have. In addition to the basic amount that the Guidelines set out, you may also be responsible for a portion of other special expenses, such as daycare or the cost of braces.

It is possible that you will have to pay an amount that is different than the amount set out in the Guidelines. For example, a court may order you to pay an amount that it decides is fair in the circumstances. It is also possible to agree with the other parent to pay a certain amount of child support. This amount must be reasonable as a court will change the amount if it determines that reasonable arrangements have not been made for the support of the child.

Step-parents

Although your financial obligation may be different than the amount set out in the Guidelines, if you are a step-parent, you may also have a responsibility to pay child support. If you are a step parent, whether you have to pay child support may depend on the legislation. If you were married, you may proceed under the Divorce Act. Under the Divorce Act, you will likely be responsible to pay child support if you lived with the child and behaved like a parent towards the child.

Under the Family Law Act, you will be responsible for paying child support if you are a legal spouse of the child’s parent and you helped support the child for at least one year. You will be a spouse of the child’s parent if you were married or if you lived in a marriage-like relationship with the child’s parent for a continuous period of two years or if you had a child together. Under the Family Law Act, you will also only be responsible for child support if a court proceeding is started within one year of the last time you providing support for the child. Under the Family Law Act, a step-parent’s responsibility to pay child support is secondary to other parents or guardians and may depend on several factors, including how long the step-parent lived with the child.

How Long Do I have to Pay Child Support?

In most cases, a parent will be responsible to pay child support at least until the child reaches the age of 19. A parent’s obligation to pay child support may continue after the child reaches 19 if that child still relies on his or her parents due to illness or disability, or because he or she is going to school full-time.

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

 

If you are a beneficiary or an executor under a Will, you may have to deal with a Will that is being challenged or, if you are a beneficiary or a potential beneficiary, you may be in a position to challenge a Will. A beneficiary or a potential beneficiary may challenge a Will where he or she claims that the Will is invalid. There are a number of factors that must be met in order for a Will to be valid, the absence of which will leave a Will vulnerable to a challenge.

Legal Requirements

A Will may be invalid if the will-maker did not satisfy the formal legal requirements. For example, in order for a Will to be valid, generally, two people must witness the will-maker’s signature. However, in certain cases, even if a Will does not meet the formal requirements, a court may determine that the Will is still valid.

Mental Capacity

A person may also challenge a Will on the grounds that it is invalid if, when the will-maker made the Will, he or she did not have the required mental capacity to make a Will. In order to have the required mental capacity, the will-maker must understand what he or she is doing and must not be suffering from any disorder or illness that affects mental capacity. For example, a person will not have the required mental capacity to make a Will if he or she is suffering from dementia when he or she makes the Will.

Knowledge and Approval of the Will’s Contents

Although a person may have the mental capacity to make a Will, the Will may still fail to reflect the will-maker’s wishes. A will-maker must understand what the Will is intending to do such that it reflects his or her true intentions. Additionally, a Will may not meet the requirement that the will-maker knows and approves of the contents of a Will if someone else improperly influenced the will-maker. For example, a person who threatens to stop taking care of a person unless the will-maker leaves him or her something in the Will has improperly influenced the will-maker.

What Happens if the Will is Successfully Challenged?

If a court finds a Will to be invalid, the court may look to a previous Will to determine how the deceased’s estate will be distributed. If there is no previous Will that is valid, the estate will be distributed according to the law of intestacy. Intestacy means that the deceased’s family members will inherit from the deceased based on the order set out in the British Columbia Wills, Estates and Succession Act.

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

As people get older, they can start to lose their ability to think clearly. This can have wide ranging effects, including an inability to properly understand or communicate how they want to dispose of their property when they die. Unfortunately, there are those that recognize this weakness and attempt to take advantage of it. A particularly insidious example of this when someone attempts to improperly influence an elderly person’s final wishes regarding the disposition of their estate.

For example, consider a relatively common situation where a parent requires assistance with living on their own or their personal care. You might notice that they tend to forget things and are having trouble running their finances. To try and keep them comfortable, you hire a caregiver. Over the years, your parent becomes quite dependent on the caregiver. The caregiver begins to help with almost every aspect of your parent’s day-to-day living, including becoming involved in their financial matters. Ultimately, the caregiver ends up living with your parent for a few months before their death. After their death, you discover that unbeknownst to you, your parent has transferred all of their assets into the name of the caregiver. You believe that your parent did not intend to give all their property away to the caregiver.

Did the caregiver improperly influence your parent to give their property away?

When there are suspicious circumstances as to whether someone has overwhelmed the will of a will-maker (called a “Testator”) to give property away, courts can consider whether someone unduly influenced the Testator. If the court finds that the Testator was unduly influenced, the court has the power to reverse the property transfer.

When determining whether the free will of a Testator was dominated by another individual, the court will review all the circumstances surrounding the relationship between the two parties. To do this, the court will analyze whether a person was in the position to dominate the will of the deceased. The court would have to undertake a careful analysis of the situation, attempting to fully appreciate the relationship between the caregiver and the Testator. The court will review medical evidence from the Testator’s doctors, testimony from the family, and also consider whether the deceased received legal counsel in advance of disposing of their property.

If you have concerns regarding the disposition of your parent’s estate it is vital to seek legal counsel without delay.

There are a number of considerations in deciding whether it is in your best interest to sue. For example, perhaps you recently attended a climbing gym for the first time. Before allowing you to use the climbing wall, the receptionist required you to read over and sign the gym’s liability waiver. You scan through the waiver, and sign your name at the bottom. After climbing for half an hour or so, you fall off the wall. Unfortunately, the safety rope provided by the gym breaks. You fall ten feet onto your back. You are very sore the next day, and consequently have difficulty lifting some of the heavier items at work.

Should you sue the gym for negligence?

There are numerous matters to be considered before deciding that it is in your best interest to sue the gym. For example, it would be vital to determine whether the waiver you signed with the climbing gym covers this sort of accident. Without review of that specific waiver, it is impossible to tell whether the climbing gym would be protected from litigation. It could very well be the case that the waiver that you signed does preclude you from advancing any law suit against the gym.

Second, assuming that the waiver does not prevent you from suing, you have to determine the type and amount of damages you might be able to claim. These damages might include missed wages from work, medical treatment expenses or money for your pain and suffering. If your potential damages are not significant, it might not be financially viable for you to pursue a law suit.

Third, you must consider what level of court is appropriate for your potential action. For example, if your damages are less than $25,000.00 you should probably advance your claim in Small Claims Court (Provincial Court). If your damages are estimated to exceed $25,000.00 then you would probably bring your case in Supreme Court. Without a careful review of the situation, it is difficult to know what damages might be available in your situation, and consequently the most appropriate Court to pursue your damages.

Before deciding to sue, there are a number of important strategic and legal decisions to make. The considerations reviewed above are only a few of the elements that must be considered, and the factors change with every different circumstance. If you find yourself in a situation where litigation could be an option, contact us to review your circumstances.

If you have had an accident or encountered some other issue that might require legal action, it is important that you seek legal advice as soon as possible. In British Columbia, the limitation period for starting an action is generally 2 years. The BC Limitations Act [SBC 2012] Chapter 13 (the “Act”) states:

Basic limitation period

(1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered.

The result of this section is that, subject to a few exceptions (e.g. minors or people with diminished capabilities), if you do not file a lawsuit within 2 years, you may be prevented from bringing a legal claim against the other party.

It can be difficult to determine when this 2 year period begins to run. Generally, again with a few exceptions, this 2 year period begins to run when the damage is discovered. The Act states

Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following:

(a) that injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or contributed to by an act or omission;

(c) that the act or omission was that of the person against whom the claim is or may be made;

(d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

Given that the limitation period begins to run from when the action was discovered or reasonably ought to have been discovered, it can be very difficult to determine exactly when a limitation period begins to run. Due to the fact that it is not always apparent when the limitation period begins to run on an action, we recommend that you seek legal counsel as soon as possible.