New Perspectives for the Canadian Bar Association – Part II

by Shelley Bentley

The CBABC sponsors 68 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.

Criminal Justice (Vancouver) Section and International Law Section
Gordon Longmuir, former Canadian Ambassador to Cambodia, spoke on the prosecution of crimes committed during the Khmer Rouge Regime (1975-1978) in Cambodia.

During the Khmer Rouge Regime approximately 1.7 million people out of a population of 7 million died through overwork, starvation or murder by the government. The leaders of the regime have never been held accountable for their crimes. According to Mr. Longmuir subsequent governments, though not as brutal as the Khmer Rouge, have governed in a far from democratic manner using intimidation and nepotism to stay in power and have never embraced the Rule of Law. The current government has little desire to hold the Khmer Rouge leaders responsible but because almost half of Cambodia’s GDP is derived from foreign aid, international pressure has forced current leaders to try those responsible for the atrocities committed. The government signed an agreement with the United Nations in 2003 to create a hybrid tribunal to conduct the trial where foreign and Cambodian judges, prosecutors, defence lawyers and investigators will work together. The process has just begun and will take many years to complete.

Mr. Longmuir emphasized that the goal of the public international tribunal is to come to grips with the Rule of Law and to allow Cambodians to see an open and impartial judicial process. He noted that Canadian lawyers have been held in high regard in other similar international prosecutions and felt that Canadian lawyers had a great deal to contribute. He encouraged them to consider becoming involved.

Family Law (New Westminster)
In May, 2005 the Family Justice Reform Working Group, set up by the Justice Review Task Force of the Law Society of B.C., published its report titled: “A New Justice System for Families and Children.” A number of significant reforms to the family justice system are proposed. Two members of the Working Group, Dinyar Marzban, QC and M. Jerry McHale, QC spoke about the mandate of the Working Group and some of the details of the proposals.

The group was specifically asked to think in terms of fundamental change rather than changing a court rule here or there, to make recommendations for a Unified Family Court and to look at historical process, including the reports on this topic produced since 1973.

A review of previous reports in this area revealed:

1. We need courts but not a court-based system so that disputes are mainly resolved outside the courtroom. Access to justice is unaffordable in our current system.
2. In respect of family law, the system needs to take into account that litigation can be driven by non-legal, emotional issues.
3. We need a system with a settlement orientation. Instead of using mediation, collaborative law and judicial case conferences as add-ons to an adversarial system, we need to start with a collaborative system as a focus.

The Working Group’s recommendations are in four areas:

1. “front end load” – Front end load refers to the mandate of providing information and orientation to the public up front and includes recommendations for providing family justice information in all formats including in person, by internet and video and for coordinating community resources for this purpose.
2. consensual dispute resolution services – An initial assessment is recommended to decide whether dispute resolution is inappropriate, for example, in cases where there is abuse, violence or an imbalance of power.
3. simplified forms and procedures – The Working Group feels that most court forms are too complicated to be used effectively by self-represented parties.
4. unified family courts – The Working Group recommends that we learn from the problems encountered in other provinces and institute a unified court when there is sufficient funding including judicial resources and services to make it work effectively.

Wills and Trusts (Vancouver)
The Succession Law Reform Project conducted under the auspices of the B.C. Law Institute and chaired by Peter Ramsay, QC has been working toward making comprehensive recommendations for reform of B.C. succession law. This Project is organized into 5 subcommittees: estate administration, alternate succession vehicles, small estates, intestate succession/Wills Variation Act (“WVA”)/Family Relations Act and testate succession.

Guest speakers, Peter Ramsay, QC, James Baird, Brad Anderson and Greg Blue discussed the draft proposals of the subcommittees and sought comments and questions from section members. Mr. Ramsay, QC stressed that the work of the subcommittees was at this point a work in progress and that none of the proposals are final. He invited comments from all members and requested that they be directed to Greg Blue.

The most contentious proposals discussed were those surrounding the WVA. The recommendations are aimed at bringing the B.C. law surrounding dependant’s relief closer to the Canadian mainstream. The draft proposals call for application of dependant’s relief to both wills and intestacies. The class of possible claimants would continue to consist only of spouses and children. Although there would be no restrictions on the right of a spouse or minor child to seek relief, a child of the deceased who is 19 or over would only be eligible for relief if unable to be self-supporting because of:

• illness
• mental or physical disability
• full-time enrolment in an educational program; or
• economic need arising from circumstances for which he or she is not responsible (form of wording not settled yet)

Further, the draft proposals include anti-avoidance provisions requiring the capital value of listed inter vivos transactions to be treated as if it were a testamentary disposition and included in the value of the net estate. The listed inter vivos transactions include common will substitutes such as:

• beneficiary designations for life insurance and RRSPs
• the deceased’s interest in a joint account
• property transferred by the deceased into joint tenancy
• trusts created by the deceased where rights of beneficial enjoyment or revocation are reserved

In addition a clawback provision would target unreasonably large transfers or payments made within a specified time (3 years) prior to death for no consideration or inadequate consideration. They would be rebutably presumed to have been made for the purpose of defeating rights under the WVA.
The proposals depart from the rest of common law Canada in that they include a recommendation that parties be permitted to contract out of the protection of the WVA.

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

This article was published in the December 2005 issue of BarTalk. © 2005 The Canadian Bar Association. All rights reserved.