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Vancouver Family Law Blog

Recent Cases on Costs

Some interesting cases recently reported which underscore both the discretion which a court has over awarding costs, and the confusion as to what factors will affect the court’s decision.  In Robyrts v. Roberts, 2009 BCCA 574 , the Court of Appeal confirmed that, even in the face of an offer to settle which would have provided a better result, the trial or chambers judge can deny any award of costs or double costs.  In C. (S.J.) v. A. (S.C.), 2010 BCCA 31, 2010 CarswellBC 135  British Columbia Court of Appeal, 2010, this issue of the court’s flexibility was canvassed again.  In this case, double costs was not awarded but the court paid attention to several factors in exercising its discretion, including the conduct of the parties and the interests of children involved.  It is clear that an Offer to Settle does not guarantee costs, let alone double costs.  It is equally clear, however, that a successful Offer will not negatively affect the court’s discretion to award those costs.

Mobility Law Update

The BC Court of Appeal recently released a decision which clarifies the decision making process the Court will use where one parent wants to move to another city, province, or country with the children and the other parent wants to stay where they are living and keep the children.   The test in these situations is what is in the "best interests" of the children. In S.S.L. v. J.W.W., 2010 BCCA 55, an appeal from S.S.L. v. J.W.W., 2009 BCSC 924, the Court of Appeal said the Judges should consider four possible scenarios and then decide which one will be in the best interests of the children.  The four possible scenarios are:

Notices to Admit

In family law, there are several methods to obtain information and disclosure from the opposing party.  Questions can be posed by way of interrogatories (ie. written requests for information) or in Examinations for Discovery (meetings during which the person being examined is required to answer questions relating to the matters in question).  Another method through which to obtain information from a party is a Notice to Admit.  A Notice to Admit is a document which lets a party seek the other party's admission as to the truth of facts alleged in the Notice or the authenticity of documents specified in the Notice. When you receive a Notice to Admit, you have two weeks to respond, either by: 1)            admitting the truth or authenticity requested; 2)            denying the truth or authenticity requested; 3)            describing in detail the reasons why the admission cannot be made; or, 4)            stating that you refuse to admit on the grounds of privilege or irrelevancy, or that the request is otherwise improper, and describes in detail the reasons for the refusal. If you do not respond to the Notice to Admit in the allotted two week period, you are deemed to have admitted everything that was in that Notice.  This is very effective and requires that, if you receive a Notice to Admit, you carefully and thoroughly review the facts and documents set out, and that you promptly and accurately respond to that Notice.

Reassessment of Trial Decisions

The court in R.A.C. v. V.L.C., 2009 BCSC 1417 recently reviewed the law regarding when it can and should reconsider a trial decision.  Under normal circumstances, a trial decision is geared towards ending the parties’ disputes and deciding the issues on a final basis.  There are, however, occasions where the Judge’s trial decision requires reassessment based upon facts which were not available to the parties during the trial.  This can only happen if a court order has not yet been entered.  However, in that event, the court has an unfettered discretion to reconsider its decision but should do so exceedingly sparingly.  Further, the court in R.A.C. acknowledged that the underlying rationale of the court’s discretion is prevent a miscarriage of justice from occurring.A reassessment is a very rare occurrence and all efforts should be made to ensure that the issues and evidence are properly canvassed at trial.

What to do about non-disclosure

What can you do when the other side won't give you the documents you need to determine his or her income?  Rule 60D of the British Columbia Supreme Court Rules dictates the disclosure that a party must make in a family law proceeding.  In the case of Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.)) Mr. Justice Fraser quite appropriately stated that,

Getting Married, Separated, or Divorced? Time to think about your will.

The laws of British Columbia with regard to familial relations and wills and estates interact in a way that you need to be aware of if you want to make sure that wishes are honoured if you pass away.  These are a few of the common issues that you should be aware of: If you are getting Married: Wills in BC are governed by the Wills Act.  Under section 15 of the Wills Act, your will is revoked if you get married, unless your will specifically contemplates your upcoming marriage.  If your will is revoked and you pass away, it will be as though you died with no will at all, and your property will be distributed according to the Estate Administration Act.  So if you get married, make sure you revisit your will if you want your final wishes to be respected.

Understand your legal options. Make informed decisions. Contact the family law lawyers of Henderson Heinrichs LLP


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