BarTalk December 2004
Volume 16, Number 6

By Shelley Bentley

The CBABC sponsors 73 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting a given area of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

ADR-Victoria
Can religion-based arbitration tribunals be implemented in B.C. under the current legislation? What problems do families face when one or both parents are members of ethnic communities whose values are rooted in Islamic rather than Christian traditions? The role of religion in conflicts and conflicts resolution, “sharia law” and the impact of September 11, 2001 on Islamic communities in Canada were the focus of a recent ADR Section meeting. Victoria lawyers Catherine Morris, Nurdin Kassam, Mary Clare Legun and Mehmoona Moosa-Mitha, a UVic School of Social Work Professor, led a panel discussion.

ADR-Nanaimo
Nanaimo lawyers Peter Giovando, Rod McNeil, Harold Saunders and Morley McKeachie led a discussion of how personal injury mediation and particularly ICBC personal injury mediations are conducted. They shared valuable insights into the techniques and styles that need to be employed in dealing with this unique form of mediation.

Family Law
The national Family Law Section recently updated members on the progress of the advisory spousal support guidelines project. This project has been sponsored by the Department of Justice since its inception in September 2001 in response to growing concerns expressed by lawyers and judges that the current Canadian law of spousal support is excessively discretionary, uncertain and unpredictable. The project has a five- to six-year time frame and seeks to develop support guidelines that could be used on an advisory basis only within the current legislative framework by reviewing emerging patterns in the current law, the various theories of spousal support, as well as various models of guidelines that are in effect or proposed in the U.S. The background paper to the first stage of this project is available online (www.canada.justice.gc.ca/en/dept/pub/spousal).

Real Property-Okanagan
Many of us have come across land trusts during our vacation travels in B.C. but know little else about these. Sheila Harrington and Bill Turner, from the Land Trust Alliance of B.C., explained how land trust organizations work with private landowners and professionals to protect, in perpetuity, natural or cultural values such as grasslands, forests, riparian areas around creeks or wetlands, corridors for larger wildlife, habitats for endangered or threatened species, community trails, and heritage buildings. Over the last 10 years 30 conservation land trusts have formed and are now holding perpetual title to over 180,000 hectares of significant land in B.C. Covenants can now restrict land use to protect existing natural features without requiring full purchase of the land. In 1994 section 219 of them Land Title Act was changed so that approved non-government organizations could hold preservation or “conservation covenants.” The covenants can be either negative or positive and do not have to benefit nearby land. They can apply to all or a small part of the parcel of land. The owner can also receive a charitable receipt for any changes to the value of the land covenanted. In the last few years the ecological gift designation has increased those tax benefits.

Ms. Harrington and Mr. Turner commented that in the past when governments held covenants the requirements were often ignored. Now that conservation organizations hold them, requirements are not only monitored and enforced but the Finance Department of the federal government is now, because of the tax benefits, imposing fines if the covenants are not observed.

Senior Lawyers
Ms. Eades Telford, author of Making the Right Move: Housing Options for Seniors and numerous other books on gerontology and aging, discussed issues that seniors face and that we face as our relatives age and look to us for help.

Wills and Trusts-Okanagan
Several recent bills, among them Bill 62, the Attorney General Statutes Amendment Act, 2004 (passed 3rd reading) and Bill 63, the Charitable Purposes Preservation Act (passed first reading), were noted. Bill 62 amends the Estate Administration Act by raising the value of small estates from $10,000 to $25,000 for which it is not necessary for a person to be appointed administrator by court order. Bill 63, if passed, would supplement the law of trusts as it relates to charitable giving by expressly recognizing discrete purpose gifts and setting out the obligations such gifts impose on a recipient charity. The Bill provides protection for the charitable purpose behind the gifts without purporting to affect the law of trusts as it relates to those gifts generally or any other gifts, charitable or otherwise.

David Bilinsky, Practice Standards Advisor at the Law Society of B.C. addressed the latest practice issues facing wills and estate practitioners: What is the latest client research saying about how successful lawyers build their practice? What techniques work in building a wills and estates practice? How can technology help you? Mr. Bilinsky commented that the effect of the information revolution has been that clients no longer believe a professional is smarter than they are and they wish to be treated with personal parity. The only competitive edge left for professionals is forging unique personal bonds with clients. Lawyers need to learn how to build trust early and build it deeply with clients. Several benefits flow from a strong trusting relationship: clients expect to form a team with their legal advisor, and they expect their legal advisor will communicate often, increasing their satisfaction with the services rendered. Clients have little price resistance when a legal advisor held on personal parity terms has advanced their interests and their life.

Shelley Bentley practises wills and estates law at Kerr Redekop Leinburd & Boswell in Vancouver.

This article originally appeared in the December 2004 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.