5 Factors to Consider When Searching for the Right Lawyer

There are many situations where hiring a lawyer is in your best interests. If you are not sure if you need a lawyer, it's not a bad idea to at least contact one to see if he or she can help (in most cases a first consultation is free). If you feel that you can't afford a lawyer, you can look into legal aid resources that might be able to help you with your particular situation.

In these instances, hiring a lawyer is essential:

This is just a sample of situations that should point you toward finding good legal counsel.

1) Website

A first step that many of us take is to do an Internet search, like searching "saanich lawyer" or "law office victoria bc". You'll of course be presented with a plethora of websites, and you'll want to check out some of them. In addition to assessing the overall feel of the site (and hence the law firm itself, since the website is its virtual "storefront"), ask yourself if the site easy to navigate; can you quickly find what you're looking for? If you select this law office you will undoubtedly be spending a lot of time on the site, so make sure it doesn't frustrate you now, or you will regret your choice later.

2) Location

Hiring a lawyer involves the communication of a lot of information, and in most cases this is best accomplished with face-to-face meetings. Unless you have a reason to hire a lawyer in a different location than where you are (if so, ask if they can conduct business via video calls, for example Skype) you'll want to look for a lawyer that is convenient to get to.

Is there easy parking close by, and is it free or low-cost (metered)? How long a drive is it, and how easy a drive is it? If you live outside an urban center (like Victoria, BC), will you have to drive all the way downtown or is there a satellite office in a rural area (like our Cordova Bay law office)?

If you have any difficulty with stairs or any other accessibility concerns you should also confirm what accessibility features the location offers. For example, the Velletta & Company law office has full-width doors, wide hallways, ample light and no steps.

3) Specific Expertise

Does the firm handle the specific type of legal advice or representation that you need? Some firms are very narrow in their scope, while others have a large team of lawyers with specific domain expertise covering a wide gamut of legal issues. You obviously don't want to hire an attorney specializing in real estate law for your personal injury case.

4) Experience

How long has the firm been in business? Keep in mind that every law office is a business, and like other businesses, they won't last long if they don't provide good value (if you haven't noticed, the competition is stiff).

5) Scheduling

Will you be able to meet with your lawyer at a convenient time for you? For those who work, after-work appointments are the only viable option...does the office have typical "banking hours" or do they close late? Can they accommodate evening and weekend consultations? Can home or hospital visits be arranged?

Final Thoughts

Once you've created a shortlist of firms, the best thing you can do is schedule a one-on-one consultation with a lawyer there (either someone you select based on what you learned from the website or whoever is recommended by the firm based on your needs). How you feel about them on an interpersonal level will be the last deciding factor. It's important to feel good rapport and can freely and easily communicate with them. As there may be lots at stake, you will be putting a lot of trust into not only the lawyer and her or his entire team. Make sure you feel comfortable that you will be getting the best advice and legal representation you can.

Evicted for Landlord's Use: Recent Amendments to S.49 of the Residential Tenancy Act

 

British Columbia’s Residential Tenancy Act (RTA) has received amendments earlier this year, primarily concerning notices to end tenancies issued by landlords on the basis that they require the rental premises for their own use. Like the series of amendments to both the Act and its Regulation in late 2017 that prevent landlords from signing “vacate clauses” (or “true” fixed-term tenancies) and applying for additional rent increases in most circumstances, these amendments mainly aim to protect the rights and interest of tenants.

 

Section 49 of the Residential Tenancy Act

 

Section 49 of the RTA allows residential landlords to unilaterally evict tenants on the following three reasons related to landlords’ own use:

All of these reasons remain untouched by the amendments. However, the three requirements for any s.49 eviction—notice, opportunity to dispute, and compensation—have all been increased in favour of the tenants.

 

Notice and Opportunity to Dispute:

 

Previously, the notice for evictions on all three reasons is two months, but the amendment has extended the period for renovation or demolitions to four months. The window of time the tenants have to appeal these notices before the Residential Tenancy Branch (RTB) has also been extended to 30 days after receiving the notice for renovation/demolition evictions, and 15 days for the first two.

 

Compensation for Eviction

 

The landlords’ duty to compensate tenants for one month’s rent for s.49 notices remains unchanged, but a new penalty for failing to provide tenants evicted on the basis of renovations/demolitions the right of first refusal has been imposed in s.51.2-3. The right of first refusal refers to the tenant’s right to enter into a tenancy agreement at the same unit after renovations are completed. This penalty is a steep one, equivalent to 12 times the monthly rent, which is also the newly prescribed amount if the tenant proves that an eviction under s.49 was not issued in good faith, i.e. the landlord did not begin using the unit for stated purposes for at least six months, within a reasonable time after ending the tenancy.

By implementing these harsh provisions in place, the provincial government intends to curb landlords’ contravention of the RTA, and incentivize tenants to take them to dispute resolution at the RTB when it is discovered. However, owing to the recency of these amendments, as well as the RTB’s sporadic additions to its decision database, at the time of writing, we have yet to read a decision that invokes these updated provisions.

 

Recent Decisions

 

However, one of the most recent decisions concerning compensation for a s.49 eviction sheds some light on instances where the landlord issues notice on the basis that they will return to occupy the unit. In Decision 7033, heard in November 2017, the applicant tenant alleges that the landlord has not moved back into the unit after she moved out. However, the arbitrator wrote that:

“… In my view a rental unit is occupied by the Landlord providing they are using it for a personal purpose, even if that purpose is simply to store personal property.”

In time, as more decisions concerning s.49 evictions become available, the public will be able to gain a better idea of how these disputes are resolved, but should keep in mind that RTB decisions are not binding on future hearings.

The provincial government’s Rental Housing Task Force is hosting community meetings across the province to gather ideas for further amendments to existing tenancy legislation, which will be reported to the Premier and the Minister of Municipal Affairs and Housing in fall 2018.

 

A Cautionary Note

This article provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

Environmental Management Act and BC's Limitation Act

 

Are there time limits to bringing a claim under the Environmental Management Act?

 

British Columbia’s Environmental Management Act sets out a comprehensive scheme with respect to the remediation of contaminated sites.  Central to that scheme is section 47 of the Act, which permits a party who has incurred the cost of remediating a site to bring a court action to recover the costs of remediation.  In a typical Environmental Management Act action, the party who has incurred the cost will seek contribution from the property’s previous owners and operators.  Even though the mechanisms in the Act are designed around the principle of “polluter pays”, the provisions of the Act make it difficult for parties who have owned or operated a site to escape liability, as the burden of proof is on those parties to show that they fall within one of the Act’s limited exceptions found in section 46 of the Act.  As a result, actions under the Act can often involve parties that have had no involvement with the property for decades.  As a result, a frequent question asked by parties finding themselves in such a dispute is whether or not the BC Limitation Act applies, or whether there are any time limits associated with bringing such a claim.

 

Does the BC Limitation Act Apply Retrospectively?

 

Although the Act does apply retroactively in the sense that all previous owners and operators the property can be found liable for the cleanup, a plaintiff does not have an indefinite time in which to bring their action.  In First National Properties Ltd. v. Northland Road Services Ltd., 2008 BCSC 569, the court confirmed that the BC Limitation Act does apply to remediation claims pursuant to the Environmental Management Act.  In that case, the court found that the limitation clock started running once the Plaintiff was aware of the cost to remediate.  In J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc., 2014 BCSC 1619, the court confirmed that the six year limitation pursuant to the 1996 Limitation Act was applicable.

Prior to the passage of the 2012 Limitation Act, it appeared that an amendment would be made to the Environmental Management Act to the effect that an action could be brought at any time. However, when that legislation was passed, no consequential amendments were made to the Environmental Management Act, so it remains at this time that the Limitation Act applies.  Thus, a plaintiff who incurs remediation costs ought to bring their cost recovery action swiftly, as the Act’s two year limit will likely come into play.  Further, it remains to be considered in a future case what effect, if any, the discoverability provisions of the new Limitation Act have in respect of a cost recovery claim.

 

About the Author:

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W. Eric Pedersen is a Partner practicing in the civil litigation department at Velletta, Pedersen, Christie Lawyers. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal.  Find out more about Eric by clicking HERE.

Relocating with Children

 

Are you separated from your spouse and thinking about moving with your child? Before jumping on a plane, there are key questions that you need to ask and certain factors that you need to be aware of.

Firstly, does your child spend more time with you then they spend with your ex-spouse? If so, a court is more likely to allow you to relocate with your child than if the child spends equal parenting time with both parents. If your child spends equal parenting time with both you and your ex-spouse, then the only consideration a court takes into account is what is in the best interest of your child.

If you do not have equal, or near equal, parenting time with your ex-spouse then the considerations are different. A court will require that:

  1. You have made a proposal for reasonable and workable arrangements to preserve your child’s relationship with their other parent, persons who have contact with them, and persons who play significant roles in their lives; and
  2. Your proposed relocation is made in good faith.

What are reasonable and workable arrangements?

 

In the case of Hansen v. Ferguson, 2015 BCSC 588 the court found the mother proposed reasonable and workable arrangements to preserve the father’s relationship with the children by sharing all travel costs, returning to Victoria twice a year with the children, transferring all available travel points to the father for his use, and providing regular Skype contact and email reports when he was at sea.

Although every case is different, sharing the cost of travel, planning trips home, and ensuring the children remain in contact with the other parent are all factors that the courts will consider as reasonable and workable arrangements. Keeping in mind the courts want to see that your child will be able to maintain his or her relationship with their other parent.

 

What is the meaning of good faith with regards to relocation?

 

Good faith is defined in s.69(6) of the Family Law Act and includes:

Accordingly, if you can satisfy the court of the above, then the relocation is presumed to be in the best interests of the child and should thus be granted, unless the children’s other parent satisfies the court otherwise.

Returning to the case of Hansen v. Ferguson the court found that the mother had shown her cost of living would be substantially less in Ontario to that of Victoria, and the proposed move was well planned. The mother would have more emotional supports in Ontario through extended family and support of her boyfriend.  This would have a trickle-down effect on the children, given that she was the primary caregiver.

The court specifically stated that:

[48]As the primary caregiver, this improvement in the mother’s general quality of life will also benefit the children. However, neither the mother nor the children have personal connections with anyone in Pembroke other than R.W., and the children will be far away from their father, grandmother, aunt and cousin, with whom they have established close bonds. This is, of course, the primary concern, but it does not on its own show an absence of good faith. These children are very young and they have not yet established routines outside of their immediate family lives that are important for them. Adapting to a new life away from their father and his family may be challenging for them, but they will be with their mother with whom they also have very close bonds. And given the mother’s plan to have more time with them and to place them in daycare where they will meet other children, I would expect them to socialize in their new environment reasonably quickly.

[49] In this case, the mother has given a lot of consideration to the impact of this move on her children’s emotional well-being. Despite the separation from the father, I find that the relocation will likely enhance the general quality of their lives.

 

If you are thinking about relocating to a new city, with your child, please contact Velletta & Company today. We would be happy to advise you on the proper procedure and help you satisfy the above requirements.

 

 

About the Author:

small 55467Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE

Most pet owners consider their pet to be a member of their family and not just another piece of property.

Normally when separating from your spouse pets are considered property and are therefore subject to be divided within the overall division of property in your family law case. A pet, therefore, would be subject to the property law principles in the Divorce Act and the Family Law Act.

This means that in British Columbia the courts consider the following when answering the question of, “who gets the pet?”

  1. Who purchased the pet?
  2. Was the pet a gift to one of the parties?
  3. Who has paid for the majority of the expenses related to the pet?
  4. Is one of the parties the registered owner of the pet?
  5. Who has had possession of and/or cared for the pet since the parties’ separation?
  6. Who was principally involved in the pet’s early training?
  7. Who was principally involved in the pet’s day-to-day care?

Additionally, courts have expressly stated that:

(a)  Pets will not be treated in a manner such as children;

(b)  Courts are unlikely to consider interim applications for pet possession;

(c)  Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d)  that pets are a variant of personal property;

As you can see, when a court considers the question of “who gets the pet” the question is more related to who the true owner is and not what arrangement is best for you and the pet. If you and your former partner both want to remain involved in your pet’s life, then it might be preferable to settle your pet custody dispute by consent in the form of a Consent Order or a Separation Agreement. This is because Judge’s tend to want to ensure some kind of finality for the parties while minimizing the likelihood for future conflict. Since, in the eyes of the law, pets are considered property, it is highly unlikely a judge would order some form of shared or joint custody of your pet.

Recent decisions, however, have challenged the status quo. The Court of Appeal of Newfoundland and Labrador case, Baker v. Harmina 2018 NLCA 15, involves a Bernese-poodle mix, Mya, who was “treated as a family member”. The couple had moved in together a short time after purchasing the dog, but when the couple separated a legal battle began over who got to keep her. Although In the end, the majority of the court considered the status quo property argument, Justice Lois Hoegg dissented in part, describing the issue of who owns Mya as being more complex than simply who bought her. Justice Lois Hoegg considered questions like:

 

 

 

 

This could set the tone for future cases.

In conclusion, Velletta & Company can certainly help you in establishing an adequate way of dealing with the issue, or alternatively, moving forward in establishing your court case. Contact us today!

About the Author:

small 55467Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE

Velletta & Company officially welcomes Natalia M. Velletta as the newest lawyer to our firm.

Natalia joined Velletta & Company in May, 2016 and has since successfully completed one year of Articles and called to the Bar on December 1, 2017, as a practicing lawyer in British Columbia. Natalia completed her formal induction in front of the Supreme Court of British Columbia at the Victoria Courthouse on March 15, 2018.

 

Natalia Velletta Natalia obtained her Juris Doctorate from Bond University in Queensland, Australia. Bond University’s Juris Doctorate is an accelerated program that provided Natalia with experience in both Canadian and Australian Law. Receiving an advanced education at a prestigious, international law school has provided Natalia with a unique, global perspective, which gives her greater insight into all types of commercial transactions.

 

During her time at Velletta & Company Natalia has established a diverse Solicitor’s practice and focuses primarily on the areas of:

 

 

With a specialty in Corporate and Commercial transactions, Natalia specifically enjoys mergers and acquisitions, having successfully bought and sold many companies and businesses for her clients. Natalia also has a passion for representing plaintiffs in motor vehicle accidents and frequently negotiates with ICBC to achieve fair and justified compensation for her clients.

 

At Velletta & Company, Natalia wishes to develop her Solicitor’s practice and to continuingly broaden her scope of experience. Natalia is determined, hard-working, and prides herself on offering the very best service for each and every client.  She is friendly and approachable and is always keen to take on new clients.

Outside the practice of law, Natalia enjoys staying active by exploring beautiful British Columbia and exotic locations around the world. She has many accomplishments including ballet, scuba diving and multiple, week-long hikes over the rugged West Coast Trail. She has a passion for photography, cooking, and camping.

Individuals promoting their business or company online are now subject to Canada’s Anti-Spam Legislation (“CASL”). CASL deals with how businesses can contact people and what must be included in the content of online messages. One important question relating to this legislation is “how can I contact people online in order to promote my business and attempt to gain clientele without breaching this legislation.” This blog post attempts to answer that question.

 

Firstly, CASL only applies to commercial messages. Messages you send are commercial where the purpose of the messages are to encourage participation in a website. The three requirements that CASL has when sending commercial messages are:

 

  1. Having consent from the recipient in order to message them further;
  2. Identifying yourself in the message and including contact information of the sender; and
  3. Having an unsubscribe function so the recipient can choose when to opt out of your messages.

 

Please note that liability applies to anyone who sends, causes, or permits a commercial message to be sent, and whether or not the sender is in Canada. If the message is accessed from a computer in Canada then CASL applies and the sender can be liable.

 

  1. Having consent from the recipient in order to message them further

 

The first time you contact a potential customer you must ask their consent in order to contact them again. Exceptions to this requirement are where you have a personal or family relationship with the recipient or you are responding to an inquiry about your site. If the message falls within one of these categories, you do not need the above three requirements in order to communicate with them. This applies whether or not the message is commercial in nature.

 

Other exceptions exist where the message is sent solely for the purposes of providing a quote to a potential customer or contacting someone with whom you have a prior business relationship with.  In either of these scenarios, when responding it is recommended that you ask their consent in your response. An example would be “click here if you would like to receive further correspondence about upcoming and new developments from our site.” Otherwise, without consent, you cannot contact them with a commercial message.

 

If you are contacting an unknown person for the first time then consent is required and must be obtained before contacting the same unknown person a second time. Once you obtain consent you do not need to ask for consent again. An example of obtaining consent would be something like:

 

We are requesting your consent to provide you messages from our site. These messages will allow us, along with other members, to contact you about our services. By clicking below you are agreeing that you consent to receive these messages and therefore participating in our site.

 

If you would like to contact the manager of our site, or having any questions, please email us at...

 

After you have received consent any further correspondence in a message to the same address will require the two elements below:

 

  1. Identifying yourself in the message and include contact information of the sender

 

When sending a message you must identify yourself. This can be done by including the logo of Jobsdone.ca at the bottom of your messages.  Unless the message is sent to a recipient with whom the sender has a personal or family relationship with.

 

  1. Having an unsubscribe function so the recipient can choose when to opt out of your messages

 

Every message sent for a commercial purpose must have an unsubscribe function at the bottom of the message. Unless the message is sent to a recipient with whom the sender has a personal or family relationship with.

 

In conclusion, you can certainly contact people on the web and elicit customers to join your website. The recipients cannot be added to a send list, email list, or messaged the second time until you have received their consent in contacting them. Velletta & Company can certainly help you in establishing an adequate way of doing this, or alternatively, moving forward in establishing your website. Contact one of our associates today to get started-we would be happy to help.

 

Additional sources: http://laws-lois.justice.gc.ca/eng/acts/E-1.6/page-1.html

 

About the Author, Jade Fraser

small 55467Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Jade is excited to be commencing her articles with Velletta & Company in August of 2017. Although her interests reside in family law, Velletta & Company offers a broad range of experience in many different areas of law which Jade will actively engage.

 

 

 

How Can I Challenge a Will in BC?

 

Our clients often ask, "Can you contest a will in BC?"

In British Columbia, the Last Will and Testament of a deceased may be challenged if there are doubts about its validity or fairness. Inheritance is a subject fraught with emotion for will makers and beneficiaries, especially when it comes to the allocation of assets. Sometimes feelings of unfair treatment can trigger disputes over the validity and fairness of a will. The Wills Estates and Succession Act (WESA) sets up ways in which a will may be challenged, and anyone thinking about changing or challenging a will in B.C. would do well to speak with legal counsel on the following:

 

Challenging a Will for Validity

 

A common question we receive is, "Who can contest a will for validity?." Contesting a will for its validity is open to the executor and any person interested in obtaining a declaration as to the validity of the will.

 

What are suspicious circumstances when challenging a will for validity?

 

There are four primary ways that validity of a will can be contested in B.C., each of which relates to “suspicious circumstances.”

The first of these suspicious circumstances has to do with the formalities surrounding the preparation and execution of a will. Previously, failure to meet certain formalities was fatal to a will, now however, defective wills may be saved under WESA.

The second circumstance is where the will maker lacked the testamentary capacity to understand what was going on when they signed their will. This can be a complicated matter. Advanced age is often associated with diminished cognitive function, but there are varying degrees of mental capacity and there is no standard of perfection when it comes to determining what a person understands. Testamentary capacity requires that a will maker understand the nature and quality of the act in which he or she was engaged when they made their will, but this does not mean that a will maker must meet a stringent standard to be of sound and disposing mind and memory. In essence, what is required is an awareness of the effect of the will, and freedom from mental disorder.

The third way in which the validity of a will may be challenged is if the will maker did not know or approve of its contents.

Invalid Wills and Suspicious Circumstances

Lastly, and perhaps the most contentious circumstance, is “undue influence”. The elderly can be vulnerable to coercion and fraud, particularly in situations of dominance and dependence. Traditionally, the burden of proving undue influence rested with the party challenging the will, and it was that party who had to prove coercion. Now however, under WESA, the party challenging a will must only establish that the alleged person of influence was in a position where there was potential for dependence or domination over the will maker and the onus of proof now shifts to the party being accused to prove that there was no undue influence.

 

Challenging a Will for Fairness 

 

If a will is found to be valid, another way in which it may be challenged is on fairness. A frequent question we receive is, "Who can contest a will for fairness?." Unlike contesting the validity of a will, a claim to vary a will, due to fairness, is only open to the deceased’s spouse and children. Third parties and other family members do not possess the ability to make a claim to vary the will of a deceased.

 

The Definition of Spouse in WESA

 

The definition of “spouse” in WESA includes individuals who are legally married, or who have cohabitated for more than two years in a marriage-like relationship. It is important to note however that the definition of spouse is always changing, and courts will examine a variety of different factors to determine who qualifies. A recent B.C. Court of Appeal case affirmed a spousal relationship that existed between two partners late-in-life. Even though the couple had maintained separate residences, had kept separate finances, and demonstrated their intention to benefit their respective adult children from earlier marriages and not each other, the court upheld the decision to vary the deceased’s will in favour of his partner of 20-plus years. Conversely, a married individual can lose their entitlement to vary where the parties are separated, but not formally divorced. This is because the loss of status as a spouse happens upon separation, regardless of the duration of the marriage.

 

The Definition of Children in WESA

 

While WESA defines “spouse,” “children” are not formally defined, but the term does apply to both biological and adopted children. Neither grandchildren, stepchildren who have not been adopted, nor the will maker’s biological children who have been subsequently adopted have standing to challenge a will under WESA.

If the deceased’s spouse or children believe they have been unfairly provided for under the will then they may apply to have the will varied. Although a will maker is free to decide how he or she wishes to see their estate distributed and they have a right to how their wishes are carried out, will makers also have a legal obligation to make “adequate provision for the proper maintenance and support” of their spouse and children.

 

What if I am treated unfairly in a will?

 

A question often asked is, what can a will maker do if they are legally obligated to bequeath their estate to an estranged, abusive, or incorrigible spouse or child? In such cases, will makers can try to protect their will by including a supporting memorandum that explains their rationale for disinheritance. Such documents, however, are still reviewable, and although courts are generally reluctant to vary allocations where they fall within an acceptable range, they are still empowered to exercise their discretion if they think it is necessary to do what is just and equitable in the circumstances.

To avoid depleting the assets of an estate in order to fund litigation, will makers should be very clear about the content of their will. Individuals should consult an accountant and a lawyer about how to structure their estate to maximize the likelihood that their assets will pass as intended. It is also important that will makers are clear about where their will is located and what document or documents make up their will.

 

Natalia M. Velletta is an Articled Student at Velletta & Company. Before pursuing her passion for law, Natalia attended the University of Victoria where she obtained her undergraduate degree in Education. Natalia also worked for the Government of British Columbia under the Superintendent of Motor Vehicles.

Many people in Canada and British Columbia live together before becoming legally married. Some people live together while never having the intention of becoming married. It is important, however, for people in all of these circumstances to understand when their relationship is considered ‘marriage-like’ pursuant to the laws of British Columbia. This is because, if a relationship breaks down the definition of ‘marriage- like’ becomes important in determining what is, and what is not, considered family property.

 

Under the provincial legislation of British Columbia, the Family Law Act (FLA), a person is considered a spouse of another person if those two people have lived in a ‘marriage-like relationship’ for a continuous period of two years or, if they have a child together.  If you are a common-law spouse or a legally married spouse and the relationship breaks down, the date the relationship became ‘marriage-like’ is the date all acquired property is family property.[i]

 

This seems as though it is fairly straightforward, however modern times are changing and certain indicators of what a ‘marriage like relationship’ is are evolving.  For example, the courts of British Columbia have found couples are becoming more and more independent of each other by having separate finances and sometimes separate homes. It is important that both parties understand when their relationship is “marriage-like” so that they can undergo steps, if they wish, to protect their interest in the event of seperation.

 

The following are highlighted characteristics from the courts as to whether or not a couple will be considered in a “marriage like” relationship:

 

 

For example, in the case of Weber v. Leclerc, 2015 BCCA 492 the appellant sought a declaration that the parties were not spouses for the purposes of the Family Law Act, on the basis that they had not lived in a “marriage-like relationship”. After evaluating the evidence before her, the judge concluded that the relationship was “marriage-like”, notwithstanding that the couple separated their finances throughout their relationship. The appellant appealed, arguing that the judge misapplied the legal test for a marriage-like relationship, and failed to give proper weight to the appellant’s assertions that she did not intend to live in such a relationship. Held: Appeal dismissed. The judge applied the correct legal test, and her findings are entitled to deference. In light of the objective evidence and the proper inferences drawn by the trial judge, she made no error in finding that the couple were in a marriage-like relationship.

 

Further, in the case of S.L.M.W. v. M.R.G.W., 2016 BCSC 272 the applicant and respondent owned and maintained two residences. As a matter of law, it is established that parties can maintain two residences and still be in a marriage-like relationship. In this case, the respondent maintained a separate residence for work purposes and this fact did not negate the court finding them to be in a marriage-like relationship.

 

As you can see understanding when a relationship becomes ‘marriage-like’ may not be straight forward. Velletta and company is a full service law firm and if you need assistance in this area, or wish to form a cohabitation or marriage agreement, please contact us.

[i] This is subject to some exceptions known as excluded property. Please note that if the parties married before they were living in a ‘marriage-like’ relationship then that is the date acquired property becomes family property.

 

small 55467Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education.

In most cases, when a person passes away they leave behind assets that form their estate. Usually, a personal representative (either an executor or trustee) is appointed to manage and distribute this estate. When receiving this role, the personal representative obtains a number of duties that they are legally required to follow. To acknowledge these duties they must swear in an affidavit that they will legally administer the deceased’s estate and be subject to these duties. This article will focus on the personal representative’s duty to account.

To account for an estate means providing information relating to two different stages, firstly about the status of the estate, and secondly about how the estate was administered and any work that was done. This information should include payments made by the estate and also any expenses and executor’s fees charged. A personal representative is required to retain detailed and accurate information of all transactions throughout their management of the contents of the estate. In some instances failing to keep accurate records can lead to the personal representative being held personally responsible for a transaction.

Specifically, there is a legal requirement that a personal representative must have their accounts approved by all beneficiaries or before a court every two years, unless it is otherwise agreed or ordered. The information that must be contained is:

 

 

 

 

Additionally, there is a common law duty to be ready at all times to provide information about the progress of the administration of the estate. Although the amount of detail under the common law duty varies based on a person’s interest in an estate, the amount of disclosure owed to a beneficiary is at the highest level. A beneficiary is permitted to inspect accounts, and other documents relating to the estate, at any point in time. Additionally, failing to account to a beneficiary after being requested to do so may result in the personal representative being ordered to pay costs of the beneficiary when the accounts are passed.

 

As you can see the duty to account is an important duty for beneficiaries and others to be aware of in the event that they are confused as to the estates financial management or its distribution. If you are a beneficiary and the personal representative is not providing you with an accounting or adequate information, it is important to consult with an estates lawyer. One of our experienced associates would be happy to provide you with the necessary advice and information to make the financial management or distribution process one that is stress-free and easy for you; all you have to do is contact us to book your first consultation.

 

 

Jade_Velletta_Company Jade grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Jade is excited to be commencing her articles with Velletta & Company in August of 2017. Although her interests reside in family law, Velletta & Company offers a broad range of experience in many different areas of law which Jade will actively engage.

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