Who needs a will.

Who needs a will? Anyone with kids, with assets, who is over 19 …. Pretty much all of you out there!

Who has a will?  …… radio silence …

Even though I am a lawyer and practiced in the area of wills and estates, I didn’t have a will for the longest time (bad lawyer!!).  I thought about this often and realized that while I can chat about estate planning and the importance of appointing a guardian for your kids and pets, when it actually came to facing my own immortality …. I choked!

I do have a will now, but the process got me thinking about how many people speak to me and say “oh yes, I need a will”, but it always get put to the end of “the list”.  Which is ironic because “the list” is usually made up of items that increase our wealth, look after our children and generally look after all of the things we need to protect both in life and death.  So having a will should be at the top of that list!!

A couple of interesting points about wills for you to mull over:

1.       British Columbia does not recognize holograph wills (except in very, very specific cases – and if you are not on the front lines in Afghanistan, you don’t fit into the circumstances!) so writing on a piece of paper that “I leave all my worldly goods to Skip the dog” just doesn’t cut it in British Columbia.

2.       If you use beneficiary designations on life insurance / RRSPs and other investment products, they do not go through your estate at your death and you do not pay probate fees on the value of these items.

3.       A will is automatically revoked upon marriage.

4.       Divorce revokes only the parts of your will that provides a gift or benefit to your ex.  Now many of us are happy of this by the time the divorce comes through … but if there is no one who is to get those gifts / benefits in place of your ex … where do they go?

5.       In British Columbia we have a statute called the “Wills Variation Act”.  It is a very old statute and the bane of many, however it creates a lot of work for lawyers.  The basic premise is that if you do not provide for a person to whom you owe an obligation (read: children and spouses – including estranged but not divorced spouses), those people can bring an action in Supreme Court for a portion of your estate.  It’s a pain and it’s specific to British Columbia, but if you are considering leaving out a child or in the process of getting divorced – see a lawyer to discuss how to protect your estate.

6.       If you make a direct gift to a minor child in your will (as opposed to creating a trust for the minor), the Public Guardian and Trustee will step in and manage that trust until the child turns of age.  The Public Guardian and Trustee is a government agency that is overworked and understaffed – your minor child’s trust will be managed at a cost and will be invested in accordance with the very specific rules set down by the PGT.  There is no discretion, there is limited flexibility and someone will be dealing with the government every time they want to use some of that gift.

7.       Finally, if you leave money to a disabled adult or child directly (as opposed to setting up a disability trust), you could actually cause them to lose some or all of their disability income.

So now that you are thinking of this, don’t put it at the end of the list – call us and set up an appointment to get this process going!!

Paule Seeger BA LLB

Urgent message concerning legal grow-ops.

Tessmer Law currently has a Marijuana grow-op case where the police failed to contact Health Canada first to ascertain if the resident had a license to grow. We are aware of other instances of legal grows being destroyed by police. Residents have been subjected to arrest because the police did not contact Health Canada first to see if a license was in place.

Please contact us if you or someone you know has been subject to such violation of their rights. We can use this information to help win our case and strengthen the civil rights of all growers and help prevent such indignities / privacy violations in the future. You may also have a possible civil suit against the police.

Stan Tessmer

The Family Law Act.

As many of you are aware,  new family legislation has come into effect in British Columbia.  The Family Law Act came into force on March 18, 2013 and replaces our old Family Relations Act.  It is not a complete overhaul of everything but rather different levels of changes to various traditional issues to bring the legislation in line with our current reality.  As well, the Family Law Act has legislated aspects of our family practice that were not included in the Family Relations Act – such as definition of family debt (yes, until March 18, 2013, our family law legislation had NO definition for family debt!).

I am going to briefly touch on the changes, provide a quick rundown on the three major themes of this new legislation and then address some myths that have arisen from the new legislation.  I will get deeper into various issues in my future blogs – so if there is something you really want to hear about – speak up!

The FLA, as we affectionately call this new law, makes small changes to issues like child support and jurisdictional overlap of the Supreme court and Provincial Court.  The areas where there are big changes, even a brand new approach, are in the care of children and the division of property.  And, as stated above, the FLA has legislated concepts that we have used in our everyday practice, but weren’t included in the legislation until now – like dealing with family debt and the use of parenting co-ordinators.

There are three major themes arising from the FLA:

1.       There is an emphasis on and better support for out of court resolution.  Basically, all the parties involved in creating this act recognized what most of us already know – most family matters are best dealt with out of court.  When you are dealing with matters that are so very personal to you, the best result will often be one that you and your ex craft yourselves.  A judge knows very little about your life and is put in a position to make life changing decisions based on a limited time and limited information.

2.       There is also a change in how matters that are litigated are controlled. So if court is necessary – which it sometimes is – there are enhanced processes put in place that help the court to manage the process and the litigants.  While we have moved away from this idea of last minute applications served on the other side on a Friday night for court on Monday, the FLA gives the court even more discretion in how to handle litigants once they decide to use the court processes.

3.       Finally, and I – like many of my colleagues – really like this one, when there is a dispute involving children, the FLA has moved the focus from the rights and priorities of the parties onto the rights and priorities of the children.  This new legislation takes a very child centered approach, and hopefully will help parents to keep in the forefront of their minds that, while they may have every right to divorce each other, they have no right to use the children as weapons in the battle.

Since the FLA has come into effect, I have heard some “myths” about the legislation, some a number of times.  I’m not sure where they are coming from … but they are not true … here are three common ones:

1.       The FLA shortens the amount of time a party must live together from 2 years to 3 months in order to be considered “common law”.

The definition of a spouse is found in section 3 of the FLA and includes a person that is married to another person or who has lived with another person in a marriage like relationship continuously for a period of at least 2 years.  So still the two year test in order to be considered common law.

There is one exception to this definition and that is when a person lives with another person and has a child with that person.  They don’t have to meet the 2 year requirement.  However this definition of spouse is limited specifically to the sections dealing with children and support.

2.       You have to wait for 2 years after the FLA comes into force (so March 18, 2015) in order to have the sections on property division apply.

The FLA came into effect as of March 18, 2013.  After March 18, 2013 all aspects of the FLA became our law in British Columbia.  Any split taking place after March 18, 2013 is dealt with under the FLA.

For court actions that commenced prior to March 18, 2013 and were still ongoing – there were transition provisions to deal with this, but basically, everything other than property division became subject to the FLA as of March 18, 2013.  The only issue in these cases that would be dealt with under the FRA was property division.

3.       You have to be married to have the rights under the FLA.

Not true. The definition of spouse under the FLA has been expanded to include common law couples of 2 years for all purposes under the FLA and common law couples of less than 2 years if they have had a child together for other purposes such as child support and care of the child.

Hopefully that provides some food for thought.  If there are other myths about the FLA that you have heard about and want debunked, let us know and we will see what we can do.

Paule Seeger BA LLB

A breakdown of why we cost what we do & how to save money.

Now what I am hoping to do is to provide some very basic information about what to expect when you get your first legal bill (woo hoo!).  Please remember that this is just general information and it comes from my personal experience – I don’t profess to understand the inner workings of all legal minds.

In my previous post, I referred to a retainer agreement.  This is the agreement between you and your lawyer detailing your working relationship.  It should explain what you are hiring the lawyer to do, it should explain how you are going to pay the lawyer, it should explain when your lawyer can decide to no longer work for you and it should also explain how you can fire your lawyer.  Remember, we work for you – so you are able to cease using us.  As I’ve previously said though, an honest conversation about your concerns is first recommended.

Most retainer agreements will tell you when you can expect your first bill.  Usually it is at the end of the first month that they have done work for you.  What you should find in your bill is a detailed account of work done on your file, how many hours were spent, the total cost of legal fees, the costs of disbursements, the taxes on fees and taxable disbursements and any amount outstanding.

Generally at the beginning of any legal relationship, the lawyer will ask that you pay a retainer.  This is basically a deposit for their services.  There is a more legal reason based in the law of contracts, but all you need to remember is that the retainer means you have the lawyer working for you from here on out.  A retainer is a sum of money that is put into our trust account and held there until we bill you for our services.  So if you write us a cheque, the funds will come out of your bank but we won’t have access to those funds until we do work for you and then issue a bill for it.  Trust accounts are regulated by the Law Society and there are some very specific rules about dealing with trust funds.

Most of the time, your retainer funds will be used to pay for the bill you have just been issued, so it is likely that you won’t have to go in and pay the bill directly.  Often, when the retainer gets to below a certain point, the lawyer will ask that you top the funds up.  This saves everyone running around at the last minute (for example your lawyer has to head into court for you) trying to make sure that your lawyer is paid.  Many firms, including ours, have a policy that if we are going into court, mediation or an examination for discovery, the fees associated with those applications must be in trust before we attend.

I think that many issues with legal bills come down to confusion as to what is billable and what is not.

The general rule of thumb is that  lawyers are very expensive friends!!  Remember that we charge for our time.  That includes time spent emailing, telephoning, writing letters and reviewing files.  We are professionals who have spent a lot of years in school to qualify to do what we do, the best use of our time is to deal with your legal issues, not the other things.  So, it is not cost effective to call your family lawyer to discuss how much you don’t like your ex, or to hand your lawyer a completely disorganized box of paperwork.

From my experience, if I get 100 emails from the same client in the space of two weeks – even if they are just one or two lines each –  I will be billing for the time spent on these.  I also remind my clients of my role when we begin to have that conversation best suited for drinks with your friends.  Remember, the cost of a couple of pints of beer / a bottle of wine to have your friends listen to your woes is significantly less than an hour or two of my time.

Here are a few tips to keep your costs down and make the best use of your legal professional:

1.       Keep your focus on your legal issues and try and keep your communications as                 streamlined as possible.

2.       When you give your lawyer lots of documents, have them organized.

3.       Type up a chronology of events to give to your lawyer for ease of reference.

4.       Speak with the lawyer’s assistant if it is a general administrative issue as opposed              to  a legal issue.  Often lawyer’s assistants know more about these issues anyway.

5.       Talk to your friends or counselors about “heart stuff”.

6.       If you have a number of things to discuss with your lawyer, it may be more efficient             to make an appointment, rather than phone and email a number of times.

7.       Make and keep a list of things that you would like to discuss with your lawyer                       during a meeting.  Make sure to deal with all of the points.

8.       If you are not scheduled to have a meeting, make a list and then send one email                 with all of your questions or points.

Basically, use your common sense.  As your relationship with your lawyer develops, you will find that each of us bills differently.  If you ever have questions about your bill – then ask your lawyer.  We need to be able to explain why we bill the way we do!

Paule Seeger B.A LLB

Demystifying the costs of hiring a lawyer.

I, like many of us, have heard people sharing horror stories of how their lawyers cost a ton.  Usually I hear this before people find out that I’m a lawyer…. but sometimes after people find out what I do each day, they look to me to explain the exorbitant cost of their past legal counsel.

What I’m hoping to do here is demystify the costs of hiring a lawyer.

Lawyers cost money.  This is a known fact.  There is the overall cost of your legal representation and the hourly rate of your lawyer.  Your lawyer’s hourly rate will depend on their years of experience, their level of expertise, their location and obviously the complexity of your file.  For example, a first year call – which is a lawyer who is in their first year of practice, will cost less per hour than a five or ten year call.  However, you have to balance that against the reality that they also know less and may take a longer time to get to a given point.  A lawyer who is a specialist in a particular area (like pension benefits for example) will likely have an hourly rate higher than a general practitioner.

The overall cost of your legal representation will be the final amount that you spend to achieve your objectives.

This could be based on an hourly rate multiplied by the hours spent on your file.  If you retain a lawyer based on an hourly rate, their rate will be detailed in their retainer agreement.  Often if there are junior lawyers or experienced support staff available in the office, the  main lawyer in charge of your file may designate some work to them and bill you less for their work.  Let a lawyer know that you are agreeable to them designating some of the work to these people if possible.

There are firms that offer flat fees for certain things – for example we offer flat fees for incorporations, wills, probate applications and powers of attorneys.  These flat rates can increase if your file is more complex than normal, however this is generally discussed at the outset.

There are also areas of law where lawyers can take files on contingency.  What this means is that you pay for the disbursements (costs associated with your file – like filing fees, long distance telephone costs and medical costs) but the lawyer agrees to take their fee as a portion of your final settlement.  There are rules about what types of law can be done on contingency.  There are also rules as to how great a percentage the lawyer can charge.  If a lawyer agrees to take your file on contingency, you enter into a contingency agreement which would detail the disbursements you would be expected to pay and the percentage of the final settlement that the lawyer will take.  You can always go to the law society website or get a second opinion to determine if the percentage to be taken is reasonable.  Most contingency work is done in the areas of personal injury law.

The lawyer’s fee is not the only cost associated with hiring a lawyer though.  Often there are added expenses called disbursements.  As I stated above, these are the miscellaneous costs like filing fees, photocopying, courier fees, costs for service and other costs reasonably associated with your file.  It is always helpful to discuss these in advance with your lawyer and be sure to review their retainer agreement to see what each firm’s policy is on disbursements.   Knowing what to expect with your file will also help you get a better expectation of the disbursements you could expect.  For example, if you are embarking on an acrimonious divorce – there are probably going to be significant court filing costs in your future.  However if you are doing up a will, you will only likely have to pay about $13.50 to register the will with Vital Statistics.

Flat fee agreements can also be either inclusive or exclusive of disbursements, so be sure to discuss that with your lawyer beforehand.  Disbursements can add up if you are doing a conveyance when buying a house or incorporating a business.  Whether these costs are included in the fee could mean a difference of $400 – $500!

Hiring a lawyer is rarely cheap, however the amount of time and emotional stress saved now or in the future generally makes the decision worthwhile.  As well, no matter what I may write about costs – I still stand by my original position that the most important thing is to hire someone you like, feel you can get along with and trust.  A cut rate price will not help you if you don’t trust that you will be getting good legal advice.

Paule Seeger B.A.LLB

Good news for first time offenders.

Tessmer Law offices has recently learned that drivers who receive 90 day prohibitions under the IRP  (Immediate Roadside Prohibition) provisions of the Motor Vehicle Act for blowing a “Fail” in the Roadside Screening Device are no longer getting the automatic requirement to take the Responsible Drivers Course, or install the Interlock Device on their vehicle for one year.  Instead the Superintendent of Motor Vehicles (and his delegate reviewing officers) are deciding on a case by case basis as to whether to require these extra remedial steps be taken to ensure the public’s safety from drinking drivers.  This is good news for drivers who do not have a history of 24 hour suspensions, or other drinking driving history.

Who’s your daddy?

We had a client come in to see us about getting child support for her son.  She had a child with a man who had disappeared from their lives and had turned up in a different province.  The issue in these cases become, do you apply for an order in Supreme Court here and then try to enforce the order in the other province? It can get pricey doing this because you have filing fees and appearances and if the other party responds, then you have a potentially lengthy court battle on your hands.  When you finally get your order, then you have to enforce it in the other province which generally requires additional filing and then further legwork – phew!

The other option is to file an application under the Interjurisdictional Support Orders Act – which has been set up to specifically deal with these types of issues.  So if you are looking for child support or spousal support from a party in another province, you fill out a number of different forms and then file it with the ISO Office in Vancouver.  They then send the documents to the relevant province and the documents are served on the party you are looking for support from.  It takes a little longer for the documents to get to the province and be served, but you avoid a number of headaches.

In this situation, the baby daddy steadfastly refused to agree that he was the father.  He threw a lot of mud and tried to bring up various mean and irrelevant issues to show he just couldn’t be the baby daddy.  The court came up with a really simple solution: do a DNA test.

DNA tests are really very simple these days – there are a number of companies with locations throughout Canada, so the mom and child go to a location in their town and the potential father goes to a location in his town.  Everyone gives mouth swabs and then in 5 – 7 business days we have the results.  The cost is in the range of $600 plus taxes.

In this situation, the court required both parties to pay their share of the test pending the results.  Which meant that if it turned out the man in question wasn’t the father, then our client would be expected to reimburse him for his share.  If it turned out that the man in question was the father, then he would have to reimburse our client for her share.

In our situation it turned out that he WAS the father and a round of furious negotiating ensued.  Our client ended up receiving a lump sum payment for outstanding support in the $10,000’s dollar range – she was happy, child was supported and baby daddy was forced to face his obligations.  Oh, and he paid for our client’s share of the test.

I always remind people that when you engage in behaviors that could result in kids – be prepared to pay for them!

Paule Seeger B.A. LLB

Another acquittal for Tessmer Law client.

Judge Klinger ruled in a grow op case that all evidence had to be excluded, and the defendant was therefore acquitted.

What happened you ask……

The judge ruled in R v Mitchell that the police violated his rights to privacy by searching his house outside of Kelowna in the Ellison area, the warrant authorized a search in Kelowna. The police also failed to serve the warrant on him as required by the criminal code, the police trespassed on his property while taking a FLIR (forward looking infrared ) image (this picks up a heat signature from the house) . In addition the police searched for a hydro bypass as well, when the warrant didn’t authorize it!! All evidence was therefore excluded.

In addition the federal government had taken steps to have his house forfeited if he was convicted, so he was a very happy man in the end. Home run for Tessmer Law

Summer time travel with your kids – Make sure you have consent!

Well everyone summer is officially upon us! Kids are out of school and free from their usual routines and many of us are taking to the sky’s and roads for some much needed vacation time!

If you and your ex are sharing custody it’s time to make sure that you have your summer parenting time schedule in place and any consents to travel signed and ready to go. Customs officers are putting heavy importance on making sure that children aren’t entering and leaving the country without the consent of both parents these days. The last thing you would want is your family vacation to be spoiled by such an avoidable circumstance!

Paule Seeger B.A. LLB

Introducing our very own Stan Tessmer

We wanted to take a minute to put a face to our practice and introduce ourselves.