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.

Ever since 2015, when the Supreme Court of Canada decided in Carter v Canada (Attorney General) that a prohibition on physician-assisted suicide was unconstitutional, Canada has had to redefine what end of life care means and what rights individuals have at this time. This is an ongoing process that will likely continue for many years.

The Supreme Court declared that it violated an individual’s rights to life, liberty, and security of the person to be denied medical assistance in dying (“MAiD”) if the person consents, and if they had a grievous and irremediable medical condition that causes enduring and intolerable suffering. In response to Carter, the federal government passed a law that allowed an individual to receive MAiD, but only if they met the conditions in Carter and if their natural death had become reasonably foreseeable.

The new law has been the subject of another constitutional challenge by the BC Civil Liberties Association, which was one of the plaintiffs in the Carter decision in 2015. They argue that the current law is overly restrictive, and that it excludes people with multiple sclerosis, Huntington’s disease, and Parkinson’s disease that should be allowed to have access to MAiD.

The discussion around MAiD continues in the courts, Parliament, legislatures, and in our homes. If you or a loved one is considering MAiD, be sure to research and understand the legal and personal implications of this important decision.

If you need legal advice on medical assistance in dying, end of life planning, or any other law related inquiry, please contact us.

After a motor vehicle accident it is very important to gather the appropriate information in case of a he said/she said battle over legal responsibility or liability.

Assuming that you do not need emergency medical attention after the motor vehicle accident you should look at and record the other driver’s licence number, the licence plate of the vehicle that hit you as well as their insurance information. It is worth stressing that importance of verifying the other driver’s licence number and not just asking for their name. This will remove the chance of the other driver providing you with a phony name. Consider taking a picture of the other vehicle (and licence plate), the other driver and the other driver’s licence.

Taking pictures of the scene of the accident which would include any damages to vehicles as well as the position of the vehicles after the accident. If there are any 3rd party witnesses, their information and identity should be recorded to provide their account of the accident if there is a battle over liability.

After the accident there are also different entities that you should contact. Right after the accident you should contact ICBC. At this initial contact you should provide ICBC with the information that you gathered at the scene of the accident. Also, it may be necessary to call the police after the accident. If it is a hit-and-run accident you must contact the police and by calling the police it creates a record of the accident which can be of assistance later on in the ICBC process. Finally, you should consider contacting a personal injury lawyer. The lawyer will act on your behalf, guide you through the legal process and ensure that you are appropriately compensated from the accident.

If you or someone you know has been in a car accident contact Heath Law LLP.

On your usual commute to work something unusual happens. While driving to work, a wild animal darted across the road which resulted in you colliding with another vehicle and injuring the other driver. The other driver has sued you and the liability for the accident has currently been assigned to you at 100%. You are thinking that this is extremely unfair as there was nothing that you could have reasonably done to avoid the accident. This situation is governed by the defence of inevitable accident (the “defence”).

The defence places an onus on the person asserting the defence to prove that the exercise of reasonable care while driving could not have prevented the accident. The circumstances of the accident must have been beyond the driver’s control.

The defence has been pled in a few different scenarios in which the defendant has claimed that the accident was entirely out of their control. For example, defendants have pled the defence when a rogue bee has flown into their car, when a wild animal darts across the road and when the driver loses consciousness while driving.

For the defence to be successful the court must be satisfied that the inevitable accident was indeed inevitable and that the circumstances causing the accident were not reasonably foreseeable.

The court must be satisfied that there was nothing that the driver could have done to avoid the accident. For example, the defence may not be successful every time an animal crosses the road as the amount of time to react, the driver’s attentiveness and the type of animal will be considered. A driver’s evasive or lack of evasive action must be deemed by the court to have been reasonable in the circumstances.

The court must also be satisfied that the circumstances which caused the accident were not reasonably foreseeable. For example, if the road you were travelling on was frequented by darting deer, it would make a deer appearing on the road and causing an accident reasonably foreseeable. Also, if you have a health condition that may cause you to lose consciousness, losing consciousness on the road and causing an accident could be also be considered reasonably foreseeable. Lastly, if you know that the outdoor temperature was going to cool below freezing after a rain, slipping on ice would be reasonably foreseeable.

Not every attempt to make a valid Will is successful. The Wills Estates and Succession Act (WESA) of British Columbia has certain requirements that must be established and proven if the Will is to be deemed valid.

There is an age requirement that is designated by s. 36 of the WESA. S. 36 states that a person who is 16 years or older and is mentally capable may make a Will. A Will that is made by someone under 16 is therefore presumptively invalid.

There are other somewhat more technical requirements needed to make a valid Will found in s. 37 of the WESA. For a Will to be valid it must be (a) in writing, (b) signed at its end by the Will-maker or the signature at the end must be acknowledged by the Will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the Will-maker. S. 40 of the WESA provides the age requirements for witnesses to a Will. Signing witnesses to a Will must be 19 years of age or older.

Once the technical requirements for making a Will are met there are also limitations to the type of property that can be gifted in a Will. S. 41 of WESA states that a person may by Will, make a gift of property to which he or she is entitled at law or in equity at the time of his or her death, including property acquired before, on or after the date the Will is made. This effectively means that one is only able to gift property that the Will-maker actually has or is entitled to.

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.

Once liability (or legal responsibility) for a motor vehicle accident has been determined the remaining question is the quantum or amount of damages to be awarded.  There are 5 different heads of damages that must be considered in arriving at the final amount: past wage loss, future wage loss, non-pecuniary damages, costs of future care and special damages.

The legal principle that governs the entire process of awarding damages is that, insofar as is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendant’s negligence.

Past wage loss deals with the victim’s lost earnings from the accident up until the point of trial.  This amount is determined through employment records, medical records and any other relevant materials.

Future wage loss is a much more involved process.  Once again employment records and medical records will be relevant.  In addition, high school records, university records and your family history will be reviewed.  The Judge must consider how long you likely would have been able to work as well as how much money you likely would have earned but for the incident.  The Court must consider variables such as the likelihood of your early death, economic downturns and likelihood of another debilitating injury.

Non-pecuniary damages compensate a plaintiff for their pain, suffering, and loss of enjoyment of life up to the date of the trial and in the future. The essential principle derived from the jurisprudence is that an award for non-pecuniary damages must be fair and reasonable to both parties and should be measured by the adverse impact of the particular injuries on the individual plaintiff.  This valuation is completely up to the discretion of the Court. Awards vary a great deal depending on the type of injury and the type of person that was injured.

Costs of future care are awarded on the basis of what is reasonably necessary to promote the mental and physical health of the plaintiff having regard to the medical evidence.  To determine the appropriate award the Court must be satisfied that there is a medical justification for claims of future care and the claims must be reasonable.

Special damages cover a person’s reasonable out-of-pocket expenses they incurred as a result of an accident.  The expenses claimed must be limited to those expenses which are restorative rather than putting the injured person in a better position than before the accident.

In British Columbia, all of the above heads of damages are added together and paid out to the injured party as a lump sum.