Commonly Asked Questions

Commonly Asked Legal Questions & FAQs

Have Legal Questions? Check out these quick FAQ’s, courtesy of Heath Law.

Provided below is a quick overview of some of the most commonly asked legal questions received by the barristers and solicitors at Heath Law, one of Nanaimo’s most trusted law firms. The list is by no means comprehensive, and if you don’t see the answer to your question here you may find something of interest in our blog. Simply click here for more articles, or keep reading below.

Although we do our best to keep our website content current and up-to-date, the world of law is ever-changing, so although our blog and commonly asked questions page are here for a quick answer it is not intended to be used as or to replace legal advice. If you have a legal issue please contact Heath Law by phone Toll Free: 1-866-753-2202 or Email: consult@nullnanaimolaw.com

Common Family Law Question & Answers

Can a mother move a child away from the father in Canada?

Only in very specific circumstances. If the guardians of the child have equal or near-equal parenting time, then the relocating guardian must demonstrate workable arrangements to maintain the child’s relationship with the other guardian, the proposed move must be made in good faith and the proposed move must be in the best interests of the child.
Positive factors making the move more likely include better job prospects for the moving partner, unique educational options, and the presence of family violence. Factors opposing the move would include a hazard to the child’s relationship with the non-moving guardian and the child’s friends.

Do grandparents have any legal rights in BC with respect to their grandchildren?

Yes. Section 59(2) of the Family Law Act gives a grandparent the right to seek contact with their grandchildren.
Contact under the Family Law Act is the time that a person who is not a guardian spends with a child.

At what age does divorce not affect children?

Divorce will always have an emotional impact on the children but in terms of financial obligations, only a “child of the marriage” is eligible for support.
A “child of the marriage” must be under the age of 19 or unable to withdraw from the parents’ charge because of illness, disability, or other cause (if the child is in university for example).

What are Support obligations for a child born outside of the marriage?

Persons qualifying as parents or guardians are liable to pay child support. Parents include a child’s biological parents as well as step-parents.
If a step-parent or any guardian who is not a child’s biological parent has support obligations their support obligations are secondary to the obligations of the child’s biological parents.

Can you go to jail for not paying child support?

Yes, it is possible that one could be sentenced to for up to 30 days for failing to pay support: s.231(2) Family Law Act. This is, however, an extraordinary remedy.

Does child support consider the number of children in each home?

Yes. In most cases involving child support, the Child Support Guidelines set out the rules for the calculation of child support. The residence of the children in split custody situations will be a factor the court considers when coming to a final amount payable as child support.

Can a parent withhold a child’s visitations from the other parent(s)?

If a parent has been wrongfully denied parenting time a court can among other things, order the parties to participate in family dispute resolution, order the parent withholding the child to pay compensation to the other parent or specify a period of time during which the non-withholding parent may be entitled to extra parenting time with the child.

How does the custody of toddlers work?

A child’s age is but one consideration for a court when it is making decisions regarding child custody. The most important and overarching consideration is always “what is in the best interest of the child”.

How to get divorced in BC?

To get a divorce in BC, you must make an application to the BC Supreme Court. The court will only grant a divorce if the party applying shows:
– The parties have lived apart — been separated — for at least one year, or
– one of the parties committed adultery, or
– one of the parties was physically and/or mentally cruel to the other.

It is possible to get a divorce without physically being present in a courtroom. This is called a desk order divorce.

If a parent has full custody of a child is it easy for a step-parent to adopt?

Generally, consent is required from both of the biological parents. In certain situations, however, the court can dispense with the consent of one of the parents. Examples of when the court would dispense with consent would include:
– the person whose consent is to be dispensed with is not capable of giving informed consent;
– reasonable but unsuccessful efforts have been made to locate the person whose consent is to be dispensed with; and
– the person whose consent is to be dispensed with;

    • has abandoned or deserted the child,
    • has not made reasonable efforts to meet their parental obligations to the child, or
    • is not capable of caring for the child.

In a common-law relationship who gets the house upon separation, if the title is in one person’s name?

If the house is considered “family property” each of the spouses has a share in the house. It is not as cut and dry as only one spouse being entitled to the house. Each case will depend on its own facts. The usual factors to be considered include when the house was purchased; when the relationship began; and any increases in the value of the house since it was purchased.

Is there a law about adultery in BC?

A divorce is granted in BC on the ground that there has been a marriage breakdown. Marriage breakdown can be established by proof of either:

  1. separation in excess of one year;
  2. adultery; or
  3. physical or mental cruelty.

How is child support calculated?

The Federal Child Support Guidelines (the “FCSG”) set out rules for calculating child support. The first consideration is the number of eligible children. To be eligible, the child must be under the age of 19, or older but unable to withdraw from the parents charge because of illness, disability or other cause, such as attending a full-time post-secondary educational institution. The next consideration is the income of both parents. With this information, a base amount of child support payable can be calculated using a table located in the FCSG. After the base amount is determined, special or extraordinary expenses will be considered. These expenses may include child care expenses, medical, dental, and health-related expenses not covered by insurance, extraordinary extracurricular activities, educational costs and post-secondary education costs. The court will then assign the special or extraordinary expenses between the parents based on each parent’s gross income.

How do divorce proceedings deal with a special needs child?

The court will consider the best interests of the child in determining child support and custody in a divorce proceeding.

The cost of caring for a child with special needs may be higher than caring for a child without special needs. Additional expenses will be considered when calculating child support.

The court will consider the specific needs of the child, the location of each parent’s home, and the location of the child’s school and activities among other things when determining custody of the child.

Additionally, a special needs child may be eligible for child support beyond 19 years of age if the person is unable to support themselves due to illness or disability.

Common Estate Law Questions & Answers

How long do you have to contest a will?

A proceeding for the variation of a will must be commenced within 180 days from the date of probate.

As Executor am I responsible for all debts of the Estate in BC?

The executor is responsible for paying debts of the estate. The executor must pay debts before distributing assets. If the executor distributes assets prematurely, the executor may be held personally liable for debts that remain unpaid after the distribution of the estate. If the executor properly administers the estate, but the will-maker did not possess sufficient assets at the time of death, the executor will not be personally liable.

How do I change the Executor in my Will in BC?

As long as the will-maker has testamentary capacity, they can also make changes to their will. To change the executor, the will-maker can execute a whole new will or the will-maker can execute a codicil. A codicil is an additional document used to amend an existing will.

How do I update my Will in BC?

There are three ways that a person can update their will in BC. First, they can execute a new will with the desired changes. Second, the person can execute a codicil. Third, the person can make a physical alteration to the existing will either by adding or removing words. Alterations need to be made carefully to ensure they comply with the Wills, Estates and Succession Act.

Do all estates have to go to Probate?

Probate gives the executor authority to handle the will-maker’s financial and legal affairs. Whether a will must go through probate depends on the deceased’s assets. Institutions such as banks and land titles generally require probate before they transfer assets out of the deceased’s name. However, because of the right of survivorship, assets held in joint tenancy do not need to go through probate. When assets are held in joint tenancy, the asset automatically passes to the surviving joint owner upon the death of the other joint owner.

Are Holographic Wills valid in BC?

Holographic wills are recognized in BC only under limited circumstances. A holographic will is a will made in the will-maker’s handwriting with no witnesses. A holographic will may be recognized even if it does not meet the formal requirements for a valid will if the Court concludes that the document represents and embodies a deliberate and final expression of the will-maker’s intentions surrounding the distribution of their estate.

What are the legal fees to prepare a Power of Attorney?

Preparing a Power of Attorney is an integral part of estate planning. Legal professionals can prepare a Power of Attorney as part of that individual’s estate plan. Legal fees will vary depending on the complexity of the estate. A Power of Attorney grants the named attorney the right to deal with legal and financial matters of the donor.  Generally speaking, the legal fees for a Power of Attorney will range from $250.00 to $350.00 plus applicable taxes.

Can the person appointed with a Power of Attorney charge fees for their services?

According to BC’s Power of Attorney Act, an attorney must not be compensated for acting as an attorney unless the Power of Attorney document has specifically authorized that compensation is to be paid and the amount of the compensation. A person appointed with a Power of Attorney will be reimbursed for reasonable expenses incurred while acting as the attorney.

What happens if the Executor of a Will dies before completing the probate process?

The will-maker could name an alternate executor in case the primary executor is unable or unwilling to perform their duties. If the primary executor dies before completing the probate process, the alternate executor can replace the primary executor. If there is no alternate executor listed in the will, the executor named in the primary executor’s will could become the new executor.

If the will-maker’s primary executor died without a will, or the executor of the primary executor is unwilling to assume the role of executor for the will-maker, another person wishing to become the executor could apply to the court for “letters of administration with will annexed”.

Mutual and Mirror Wills for married couples

Mirror wills contain identical provisions- they ‘mirror’ each other. For example, the will of each spouse could assign their estate to the surviving spouse and then to their children. The surviving spouse has the power to change or alter the will after their spouse has passed away.

Mutual wills, however, cannot be altered by the surviving spouse. For a mutual will to be valid, it must contain a binding agreement that upon the death of either spouse, the surviving spouse cannot alter or revoke their will. Mutual wills are commonly used by blended families because they protect the interests of the children of both spouses.

Can a niece contest a will?

Only a spouse or child of the will-maker can contest a will pursuant to section 60 of the Wills, Estates and Succession Act of British Columbia. If the will-maker did not make adequate provision for the proper maintenance of the will-maker’s spouse or children, the court may vary the will.

Can I sell a car in BC without probate?

 After the will-maker passes away, the Executor may sell the will-maker’s vehicle. If the will-maker’s estate is worth less than $25,000, probate is not required to sell the will-maker’s vehicle. If the will-maker’s estate is worth more than $25,000, the Executor must provide at least one of the following:

  • A Grant of Probate and Will;
  • An Original Letter of Undertaking from a lawyer that promises to deliver a copy of the Grant of Probate to ICBC when probate is granted, and Death Certificate, and Will; or
  • A Court Order.

 Can a Power of Attorney sell property without probate?

 A Power of Attorney granted by an Adult to a named attorney authorizes the attorney to manage the Adult’s financial and legal affairs while the Adult is alive. Unless the Power of Attorney is an Enduring Power of Attorney, it terminates on the mental incapacity of the Adult. An Enduring Power of Attorney terminates on the death of the Adult. Accordingly, if the Adult dies, the Power of Attorney cannot be used to sell property. A Grant of Probate is required to sell the Adult’s property after the death of the Adult.

Do lawyers have to return a client’s file?

Some documents in a client’s file belong to the client, while other documents belong to the lawyer. Once the file has closed, the client may request documents that belong to them. The client is entitled to documents such as their medical records, expert reports, and examination for discovery and trial transcripts.

How do I apply for probate without a Will?

If the deceased did not have a Will, a person can apply to court for a Grant of Letters of Administration. The application for a Grant of Letters of Administration requires, among other documents, an affidavit from the applicant swearing they diligently searched for a Will and believe the deceased died without having left a Will.

How long do you have to contest a Will in Canada?

Each province and territory has its own legislation governing Wills. In BC, an action to vary a Will must be commenced within 180 days from the date of the Grant of Probate.

How long does an Executor have to settle an estate in BC?

 Generally speaking, the Executor has one year from the will-maker’s death to settle the estate.

Is Power of Attorney necessary?

 A Power of Attorney is not necessary. However, granting a Power of Attorney is recommended. The named attorney can manage the financial and legal decisions of a person who is mentally incapable, provided it is an Enduring Power of Attorney. Where there is no Enduring Power of Attorney and a person is mentally incapacitated, a Court Order appointing a committee would be required in order to transact any financial or legal matters, and this is expensive.

COVID-19 Questions & Answers

EMPLOYMENT QUESTIONS

My employer told me that I am being only temporarily laid off.  Am I being fired?

A temporary layoff is a specific type of layoff where employers don’t have to pay severance. An employer could only issue you a temporary layoff if you work in an industry where layoffs are standard practice (e.g., forestry), you agree to the layoff, or the employer’s right to lay you off is expressly stated in your employment contract. Otherwise, a temporary layoff is a termination of your employment and you have a right to receive severance pay. The amount of severance will depend on your length of service, the position you held, your level of responsibility, what your employment contract may say about severance as well as other matters. You should also review the BC Employment Standards Act.

Is my employer permitted to ask me if I have or had COVID-19?

An employer has a legal responsibility to ensure that all employees are working in a safe environment.  It would not be uncommon for an employer to require disclosure in response to the following questions:

  • Have you been diagnosed with COVID-19 or experienced any of the following symptoms within the last month: Fever, cough or difficulty breathing?
  • Have you had close contact with anyone that had a confirmed or probable COVID-19 case?
  • Have you travelled internationally within the last 14 days (i.e. returned home from another country)?

Your employer can also remind you to wash your hands and tell you to be prepared to work from home.

RENTAL ACCOMMODATIONS QUESTIONS

I’m renting a basement suite in someone’s home, do I have to inform my landlord if I’ve tested positive for COVID-19?

You are not obliged to disclose any private medical information to your landlord however in order to protect everyone near you may choose to inform your landlord to ensure that they (or their family members) should protect themselves by not entering your suite or coming into contact with you.

I can’t pay my rent, can I be evicted during the Pandemic?

The government of British Columbia has prohibited residential tenancy evictions at this time for nonpayment of rent. You can be evicted for other breaches of the lease. This area of the law is subject to change without notice so please check with us before making any major decisions.

LEASING OF COMMERCIAL SPACE

My business had to close due to COVID-19, do I still have to pay my rent?

Yes and No; the government has introduced certain rules in this area which are subject to change without notice so please check with us before making any major decisions. It is recommended that you speak to your landlord, explain the circumstances and try to make alternate arrangements.

TRAVEL RESTRICTIONS

What are Canada’s current travel restrictions?

  • Canada has a global travel advisory in effect. Avoid non-essential travel outside Canada until further notice and avoid travel on cruise ships.
  • Canadians returning to Canada from another country must self-isolate or quarantine for 14 days, depending on if they have symptoms.
  • Due to government of Canada recommendations made with little or no notice, we recommend that you visit the Government of Canada webpages for further information https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/latest-travel-health-advice.html
  • If you have any symptoms of COVID-19 you can’t travel by air or train within Canada.