A separation can be difficult for all members of the family; the family pet is no exception. Many people may be surprised when they go to court seeking to find a fair way to share the family dog, cat, or other pet, that it is treated like property, not family. The courts have set out several factors that will determine how pets are treated (Oh v City of Coquitlam, 2018 BCSC 986):

  1. pets will not be treated in a manner such as children;
  2. courts are unlikely to consider interim applications for pet ownership;
  3. Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is appropriate; and
  4. that pets are a variant of personal property.

While pets are personal property, they are treated differently than a car or a piece of furniture. There is a requirement that animals, especially cats and dogs, be treated humanely. A court will not award ownership of a pet to a person if it would result in abuse or neglect. Apart from that, the courts will only consider who has legal ownership, not who has the most affection for the pet or treats it better. Courts will not create visitation or joint custody arrangements for pets.

Legal ownership will usually be determined by who owns the pet or who brought it into the relationship. This usually is done by looking at who is the registered owner on the pet’s certificate or who paid for the pet. A person can also show legal ownership if they prove that the pet was gifted to them.

This cut and dry approach might make people think that all judges are heartless, but there are dog lovers on the bench too. In 2018, Justice Lois Hoegg of the Newfoundland and Labrador Court of Appeal dissented when the majority of the court relied on the above approach for determining who got the family dog (Baker v Hamina, 2018 NLCA 15). She thought that when two people contest the ownership of a pet, the court should consider additional factors, including:

  1. who bore the burden of the care and comfort of the animal;
  2. who paid for the expenses of the animal’s upkeep; and
  3. what happened to the animal after the relationship between the contestants changed.

The best way to ensure that your pet is treated like family and not property is to resolve that issue before it goes to court. If you would like to book an appointment with any of our family law lawyers, please contact Heath Law LLP at 250-753-2202.

Hiring a contractor to perform work around your house or property can be a long and complicated process. It is worse when the work is not done properly, resulting in delays or requiring repairs to the work completed by the contractor. If a contractor refuses to remedy the defects, a lawsuit might be the best option to ensure that you are compensated appropriately for the breach of contract. If you ultimately decide to sue the contractor, a Court will determine if the contractor acted negligently when performing the work.

The Provincial  Court of British Columbia provides a good summation of the law in the case of Morgan and Gaiga v. Pacific Coast Floor Covering Inc., 2018 BCPC 236. In that case, the Court was considering if flooring had been installed negligently. When determining if the flooring had been installed negligently, the Court opined that a contractor is required to perform the work to a usually ascertained objective standard. A contractor, when completing a job, must ensure that:

  1. The materials are of proper quality
  2. The work is performed in a good and workmanlike manner;
  3. The materials and work, when completed, must be fit for their intended purposes; and
  4. The work must be completed without undue delay.

When determining if work is completed to the standard required by law, a Court will consider a broad category of factors. A Court will consider the industry standards associated with that particular type of construction, any regulatory standards for the work performed, or the manufacturer’s installation instructions for the product. When considering these elements, no one element will be determinative, but a Court will attempt to determine if the contractor performed the work negligently. Ultimately, the Court did find that the flooring was not installed with generallyaccepted practices and standards in the industry.For example, the Court reviewed the manufacturer’s Installation Instructions and the industry standards adopted by the Canadian Wood Flooring Association. Consequently, the Court awarded a judgment to repair the negligent flooring.

If you have concerns regarding work completed in or around your home, please give us a call to discuss the matter. Deciding on the best course of legal action will require a careful analysis of the specific circumstances.

Is the Agreement Procedurally Unfair?

Before a Court will set aside an agreement, it will first consider the circumstances surrounding the agreement and whether the parties entered into the agreement in a fair manner.

The Court will consider several factors, such as whether:

  1. one party unfairly pressured the other into signing the agreement;
  2. one party had substantial power over a more vulnerable party;
  3. one party failed to disclose important information to the other party that would have affected the distribution under the agreement;
  4. there was an error in calculation or other mistake;
  5. one party lied to the other party about something that would have affected the agreement; and
  6. each party obtained legal advice about the agreement from his or her own lawyer.

After considering the above, the Court may stilldecide to not set aside all or part of the agreement if it finds that it would not have made a substantially different order for property division.

Is the Agreement, in Substance, Significantly Unfair?

Under a second step, even if the Court finds that the agreement was obtained in a fair manner, the Court may still set aside the agreement if the Court determines that the agreement is significantly unfair.

In determining whether the agreement was significantly unfair, the Court will consider:

  1. the length of time that has passed since the parties made the agreement;
  2. the parties’ intention in achieving certainty in making the agreement; and
  3. the degree to which the parties relied on the terms of the agreement.

If you need legal advice regarding a property agreement, please contact Heath Law LLP.

Upon the separation of two spouses, whether married or common law, spousal support is a critical issue that needs to be discussed. This is especially important for those who are leaving long-term relationships because the effects of separation can be particularly severe for them. Spouses should be aware of a couple of rules that may determine how long spousal support will paid.

The Spousal Support Advisory Guidelines must be considered by the courts when considering the amount and duration of spousal support. Generally, support will be payable for 0.5 to 1 year for each year of cohabitation or marriage. So if two people were in a 14 year relationship, spousal support would be payable for 7 to 14 years. However, if the relationship lasted for 20 years or longer, the duration of support will be indefinite. Spousal support can also be indefinite under the Rule of 65. This rule calls for indefinite support when the age of the recipient spouse plus the length of the relationship equals or exceeds 65. The Rule of 65 does not apply to relationships that last for less than 5 years. For example, if two people ended a 10 year relationship when they were both 60 years old, support would be indefinite.

Indefinite support does not necessarily mean permanent support. It only means that no time limit can be set at the time of the order or agreement. Indefinite support orders are open to variation or review as circumstances change over time. Changes in circumstances may include a change of income, retirement, re-partnering, or if the recipient spouse has become self-sufficient.

Recipients of indefinite spousal support are under an obligation to make reasonable efforts toward their own self-sufficiency. There is no duty to achieve self-sufficiency, but efforts must be made. If a recipient fails to make reasonable efforts, the courts may impute income and reduce spousal support on a later review or variation.

If you would like to book an appointment with any of our family law lawyers, please contact Heath Law LLP at 250-753-2202.

Estate planning is a complicated process, and it takes a lot of work to ensure that everyone you care about is provided for. Two mechanisms that can be used are Mirror Wills and Mutual Wills.

Mirror Wills create identical provisions in multiple wills and are usually used by spouses. For example, each will could leave everything to the other spouse with a gift over to their children in case the other spouse passes away before the estate is distributed. This method gives the surviving spouse complete control and ownership over the property, and that spouse may change their will after the other’s death if they wish.

A Mutual Will is similar to a Mirror Will in that the provisions in each will mirror the other. It is different because Mutual Wills cannot be changed except as agreed upon. When Mutual Wills are created, both parties agree not to revoke or change their wills, except as provided by that agreement, including after the other’s death. This type of restriction is most often used with blended families, when one or both spouses have children from previous relationships. In those situations, Mutual Wills can be a good way to ensure that if you predecease your spouse that your children will still be provided for.

Problems arise when it is not absolutely clear whether or not two people intended to create Mutual Wills. If there is doubt, Courts generally do not want to interfere with a survivor’s freedom to change or create a new will. This was exactly what happened in Dolby v DeSantis Estate[1989] B.C.J. No. 297 (BC SC). Mr. Dolby and Mrs. DeSantis created identical wills. The wills gave all property to the other spouse, and Mr. Dolby’s children would receive all of the property if they both passed away. After Mr. Dolby’s death, Mrs. DeSantis changed her will and left all of the property to her side of the family. When Mr. Dolby’s children sued Mrs. DeSantis, the Court found that there was no evidence that Mrs. DeSantis ever intended for the first will to be a Mutual Will, and she was free to change her will at any time before her death. The fact that Mr. Dolby and Mrs. DeSantis signed identical wills at the same time did not prove that the wills were Mutual Wills. In order to prove that wills are Mutual Wills, not Mirror Wills, it must be proven that the parties agreed not to revoke the will or to be bound by its provisions in making any subsequent will.

Creating a will is a significant life event that needs to be attended to with the proper diligence and care. If you would like to create your first will or have any questions regarding your existing will please contact Heath Law LLP at 250-753-2202.