BarTalk February 2003
Volume 15, Number 1

by Shelley Bentley

The CBABC sponsors 72 Sections which play a vital role in keeping members informed on both 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.

Family Law-Nanaimo
One of the projects identified by the B.C. Judicial Review Task Force is the exploration of the need and desire for a Unified Family Court system (UFC) in B.C. Jerry McHale, QC outlined the four principles upon which a UFC system is based:

Single jurisdiction: The Provincial and Supreme Courts would be merged to create a larger Supreme Court.

Specialized judiciary: Judges would either work full-time permanently or on a term rotation.

Simplified procedures: Access by the public would be the focus so procedures, costs and the culture as it currently exists in the Supreme Court would have to be changed.

Enhancement of existing services: For example, custody and access reports, mediation and programs such as “Parenting After Separation.”

Mr. McHale noted that the implementation of a UFC system in B.C. depends on federal funding and an important window of opportunity exists now. This is because of the federal budget in 2003 and the amendment of the Judges Act and the Divorce Act.

The first question that must be answered is whether B.C. wants to implement such a system, and the second is whether B.C. has the technical capacity to meet the tight time frames set by the federal government to have the system ready for implementation by February 2004.

Family Law-Vancouver
Joel Nitikman surveyed the tax laws relevant to family law practitioners. He began by noting that the Income Tax Act is a complete set of rules. Fairness, logic and equity do not enter into the tax regime. In tax law, form is everything. A tax plan must be exactly correct to work. Furthermore, tax effects can be unexpected and difficult to analyze. Mr. Nitikman warned practitioners not to accept courthouse step settlements and to always get tax advice where the dollars warrant it. He offered the following substantive reminders:

Maintenance:

• The definition of spouse changed in 1993 and again in 2000. As of 2001, common-law partners, including same-sex partners are treated the same as married couples for all purposes of the Act.

• A common-law partner is a person who cohabits in a conjugal relationship with the taxpayer, provided that they have either cohabited throughout a continuous one-year period before that time or the person is a parent of the taxpayer’s child. A child of a taxpayer also includes a person who is wholly dependent on the taxpayer for support and of whom the taxpayer has, in law or in fact, custody and control. A parent does not include a mother-in-law or a father-in-law.

• An agreement or order before May 1997 is subject to the following inclusion/deduction regime: the receiving spouse includes support in income and paying spouse deducts it, if and only if: it was an allowance received pursuant to written agreement or court order; it was an allowance paid on a periodic basis; the payor and payee were living separate and apart; and the separation was due to marriage breakdown.

• An agreement or order after April 1997 is not included in the spouse or child’s income and not deductible by the payor unless covering payments made before May 1997.

• Generally, legal expenses to bring a right to income into existence are not deductible but legal expenses to enforce an existing right are deductible.

Child Care Expenses:

• CCRA‘s position on child care expense deductions in joint custody arrangements is a surprise to many. In a true 50/50 custody arrangement where one parent pays 100 per cent of the child care costs, that parent would only be able to claim 50 per cent of the child care costs as a deduction. This is because an individual is entitled to claim child care expenses to the extent that they were incurred with respect to the period of time that the child resided with him or her and enabled that person to engage in the activities listed in paragraph (a) of the definition of “child care expenses” e.g., work.

Municipal
Tom Barnes of Barnes Twining and Short outlined the new Building Bylaw Project undertaken by the Municipal Insurance Association of B.C. This Association began operations in the 1980’s when many private insurers chose to abandon local government insurance because tort liability claims were too difficult to predict. Wide private law duties of care, increasing recovery for pure economic loss, the growth of class actions and joint and several liability in the municipal government context, led to the use of a risk management approach in establishing regulatory measures. The Building Bylaw Project’s goal is to provide insured members with core building bylaw wordings that can be adopted with minimal modification. This will standardize risk undertaken by local governments in regulating construction. The core provisions incorporate expressions of legislative intent and set out the scope of a building official’s duty of care. They also define the standard of care having regard to the current edition of the B.C. Building Code and surrounding jurisprudence.

Real Property-Vancouver
Ralston Alexander, QC, outlined the recommendations of the Law Society’s Paralegal Task Force to look at options for expanding the role of legal assistants, including certifying paralegals and creating a framework for the operation of independent paralegals. The Section also discussed proposed amendments to standard undertakings for incorporating transparency provisions relating to the discharge of financial charges.

Women Rainmakers-Vancouver
Lyall Knott, QC stressed his belief that survival of practice depend on the ability to attract and retain clients. Along with meeting billing budgets, taking CLE courses, and participating in management, he suggested the following should be part of every day:

Do: Be a good lawyer. Provide good service. Make house calls. Return all phone calls before leaving for the end of the day. Exceed deadlines. Talk about and monitor your fees to prevent future problems and send work-in-progress on a weekly basis to keep the client informed. Say thank you for referrals, for your client’s business and for having your account paid. Visit each client at least once a year. Know your client’s business. Know your community. Join business organizations. Understand relationships. Your relationship is not with the corporation but the people who work there. Be a problem-solver.

Don’t: Don’t burn bridges. Be courteous and restrain yourself. Don’t transfer clients without a proper introduction. Don’t bill for “five-point snappers” e.g., don’t send a bill with 0.1 for a phone call from your client. Don’t send wrong signals by appearing to be too busy to take on new work. Don’t ever give up.

Shelley Bentley is in private practice at G Davies & Company.

This article originally appeared in the February 2003 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.