Resulting Trusts: Making Gifts during Your Life

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In order to minimize taxes, avoid probate fees, control distribution or to avoid estate litigation that may result from a Will, some people decide to give away some or all of their assets while they are alive. However, in some cases, giving a gift during your lifetime and outside a Will may lead to litigation to determine whether the person giving away the asset intended to give a gift.

Gifts Made During a Person’s Life

A person may make gifts during his or her lifetime by giving another person a particular item, money or an interest in property.  When a person makes a transfer of an item without receiving anything in return, the law presumes that there is a Resulting Trust. A Resulting Trust means that the person who received the transfer of the item holds the item in trust for the person who made the transfer. In other words, the person who made the transfer keeps the beneficial ownership of the transferred item because he or she did not receive anything in return for its transfer. In these circumstances, the person who received the transfer of the item has an obligation to return the item to the person who transferred it.

There are exceptions to the presumption of a Resulting Trust. For example, there is an exception where a parent has given a gift to a minor child. In these circumstances, the law presumes that the parent intended to give a gift to his or her minor child. This exception does not apply where a parent gives a gift to his or her adult children.

The person who received the gift may be able to rebut the presumption of a Resulting Trust and establish that the transfer was indeed intended it to be a gift. In these cases, the law looks to whether the person who made the transfer intended to give a gift or if they made the transfer for some other purpose (and believed that they would have the item returned). If a Court determines that the person who made the transfer intended to give a gift, no Resulting Trust will be found.

Unequal Distribution under a Will

How a person organizes their financial affairs while they are living may result in what seems like an unequal distribution of their financial assets to family members upon that person’s death. Beneficiaries may argue that, due to the presumption of Resulting Trust, gifts that the deceased made during his or her life were meant to be divided within the Will.  For example, a person may transfer a large sum of money to his or her adult child to help make a down payment on a house. In this case, the transfer may result in a smaller estate available to be shared by the beneficiaries under the Will. Beneficiaries under the Will may argue that the money advanced was only a loan and that the presumption of Resulting Trust applies such that the money should be returned to the Estate and divided according to the Will.

Making the Gift

When a person wishes to make a gift, he or she may want to clearly demonstrate that it was his or her intention to make a gift and not to have the item returned. For example, in the scenario described above, the parent may wish to create a Deed of Gift – a written document – stating that the money is a gift and that the other party does not need to pay the money back.

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Personal Injury Damages – Avoiding Homeowner Liability

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As the weather becomes colder, it is important to be aware of the increased risks that result from the accumulation of snow and ice. In Canada, property owners and occupants have a responsibility to act reasonably to remove snow and ice to ensure that their property is not slippery or otherwise unsafe. The responsibility to remove snow and ice extends to the walkways in front of the occupier’s home.

What happens if someone falls?

If a person slips or trips on snow or ice that accumulated due to the owner/occupier’s negligence in failing to keep the property safe, he or she may sue for damages to recover the losses suffered. In order for a person who suffers a slip and fall on ice or snow to prove that the owner/occupier was negligent, he or she must show that the conduct of the owner/occupier fell below the accepted standard for clearing snow and ice. People walking on snowy or icy surfaces are also expected to take reasonable care by walking carefully and wearing reasonable footwear. If a person who suffers a fall was not acting reasonably, a Court may find that he or she was contributorily negligent and may reduce any damages awarded.

Removal of Snow or Ice?

Ensuring that your property is free of ice and snow can be challenging during the winter months, particularly when temperatures are changing quickly. However, an owner/occupier must only act reasonably in the circumstances to ensure that his or her property is safe, which means clearing snow and ice within a reasonable amount of time. Determining what is reasonable will depend on a number of factors, including typical weather conditions in the area and if the snow or ice was sudden or unexpected.

In addition to an owner/occupier risking liability for damages due to their negligence for failing to keep their property clear of snow or ice, they could also be exposed to a fine from the City/Municipality where the property is located.  Many cities have bylaws that prescribe specific time requirements for salting sidewalks and shovelling driveways or walkways. For example, in Nanaimo, British Columbia, owners/occupiers must remove snow and ice from walkways within 24 hours of the snow or ice accumulating.

Although a City may set certain time limit for snow or ice removal, a Court may still find an owner/occupier liable for damages if it concludes that the snow or ice should have reasonably been removed before the time period prescribed by the City. For this reason, it is important to be careful to diligently maintain your property and walkways during the winter months.

 

 

 

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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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