Financial disclosure

Sworn Financial Disclosure

Shinder v Shinder 2017 ONSC 4177  sets out the importance of how sworn financial disclosure in family (and estate)  court actions must be honest and complete as it is a ” bedrock principle” that the parties are entitled to rely upon.   The Supreme Court… Read more

jurisdiction

B.C. Case Transferred to Alberta

In subsequent reasons for judgement Cresswell v Cresswell 2017 BCSC 1183 a BC Court ordered a court action transferred to Alberta after finding that the plaintiff did not have standing to bring the action in BC as she was ordinarily resident in Alberta, did not… Read more

Is it a Petition or Notice of Claim?

Petition or Notice of Claim?

Litigators must choose the appropriate forum to commence a court action: a petition or notice of claim. Most cases are commenced by the use of a notice of claim while certain types of cases may or must be commenced by petition. Carphin v Braich Estate… Read more

Understanding Inherent Jurisdiction of the Court

Inherent Jurisdiction of the Court

Mayer v Rubin 2017 ONSC 3498 dealt with the inherent jurisdiction of the court to supervise the management of estates, control its processes and protect those who cannot fend for themselves.  26      The court has broad and inherent powers to supervise the management of estates… Read more

Entering into Settlement Agreements

Settlement Agreements

Probably every litigator has had the experience of having entered into a settlement agreement only to have the opposing party attempt to repudiate the settlement agreement resulting in a court application to determine if the agreement is valid and enforceable or if it was successfully… Read more

Exclusion of a Party at Trial or Discovery

Exclusion of a Party at Trial or Discovery

Generally speaking a party to an action has the right to attend the entire trial or the examinations for discovery of other parties to the action and exclusion of a party is an uncommon event, but appropriate in some circumstances. The BC Court of Appeal case Sisson… Read more

Vexatious Litigant Enjoined From Further Court Actions

Vexatious Litigant Enjoined From Further Court Actions

A particularly frivolous and vexatious claim commenced by ” God, Prince Kitsilano, Skidegate-Sterritt Family, in James Sterritt and Marya Watson , on behalf of all Indians and Muslims was struck and the litigant barred from commencing further court actions without leave of the Supreme Court…. Read more

The Court Orders Mental Capacity Exam

Court Orders Mental Capacity Exam

In Re Singh 2017 BCSC 984 the court invoked its parens patriae jurisdiction and  ordered a 93 year old father to undergo a mental capacity examination by two geriatric doctors . Two of his six children claimed that their father was mentally incompetent to manage… Read more

Undue Delay: Equitable Defence of Laches

Undue Delay: Laches

Hrenyk v Preiss estate 2017 SKQB 151 contains a through discussion of the equitable defence of laches- the plaintiff’s undue delay in proceeding with a court action to resolution. 26 Laches is discussed in Ahone v. Holloway (1988), 30 B.C.L.R. (2d) 368 (C.A.), at page 378:… Read more

Duplicate Litigation

Avoiding Duplicate Litigation (Res Judicata)

Duplicate litigation is to be avoided and thus the legal concept of res judicata- when a court has decided the legal issue already it constitutes a bar to a subsequent action involving the same claim. Alexander v Alexander 2017 BCSC 914 is a recent case… Read more

Partition of Property Orders

Partition of Property Orders in Joint Tenancy Agreements

Whether property be owned as tenants in common, or as joint tenants, if the parties cannot agree on the sale of the property, the BC Court has the power to do so under the provisions of the Partition of Property Act RSBC. This blog sets… Read more

Determining Legal Fees When No Retainer Agreement is Present

Determining Legal Fees When No Retainer Agreement is Present

If a lawyer does not have a contingency fee agreement or retainer agreement then the courts will use various criteria to determine the appropriateness of the legal fees based on quantum meruit (a reasonable fee for services rendered). One of the chestnuts in this area of… Read more

Appointing and Removing a Litigation Guardian

Appointing and Removing a Litigation Guardian

Under Supreme Court Rule 20 – 2 (2) a proceeding brought by or against a person under a legal disability must be started or defended by his or her litigation Guardian. A person is typically under a legal disability when under the age of 19… Read more

Notice to Dispute: Understanding the Rules

Notice to Dispute: Understanding the Rules

A party wishing to contest the issuance of a grant of probate or administration may file a Notice to Dispute under Rule 25 (10) of the Supreme Court Rules. While a notice to dispute is in effect, the registrar must not issue an estate grant…. Read more

Ensuring Independent Legal Advice

Ensuring Independent Legal Advice

Many transactions are set aside in British Columbia by the courts on the basis that true independent legal advice was not obtained by the person making a radically changed will or transferring an asset for little or no consideration. A lawyer’s duty in such situations… Read more