by Shelley Bentley

The CBABC sponsors 69 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.

Family Law Section – Vancouver
Lawrence Kahn of Kahn Zack Ehrlich Lithwick spoke about assisted reproductive technology agreements between intended parents and surrogate mothers.

Mr. Kahn noted that there was no legislation dealing with assisted reproduction until the federal Assisted Human Reproduction Act (the “AHRA”) came into force in April of 2004. This Act substantially alters existing practice in that it criminalizes any payment to a surrogate mother other than for expenses related to the pregnancy. Allowed expenses will be particularized by regulations to the AHRA and are not expected to come into force until 2007. Mr. Kahn commented that surrogate mothers have traditionally been paid for their services and he expects that the practice will likely continue in some form.

Mr. Kahn’s surrogacy agreements cover the terms of implantation, the pregnancy, the surrogate mother’s expenses and the transfer of the child to the parents following birth, and include numerous collateral issues:

• psychological and medical screening procedures
• mechanics of the embryo transfer procedure
• testing and treatment during pregnancy
• the surrogate mother’s obligations concerning diet, physical activity, submitting to testing during the pregnancy
• insurance on the life of the surrogate mother
• releases as to all parties’ potential liability against each other in tort, contract and negligence
• custody of the child after birth
• birth registration and adoption
• termination of the agreement

Mr. Kahn went on to discuss the two ways in which legal custody of the child is transferred to the prospective parents: (1) adoption by the biological father and the prospective mother and (2) obtaining a court order for declaration of parentage. The latter orders became available following the decision in Rypkema v. R., 2003 BCSC 1784 and involve a court application for a declaration that the prospective parents are the child’s parents and an order for the entry of the parents’ names on the child’s registration of birth at first instance. Such applications usually involve a request for a sealing order so that privacy is maintained.

Commercial and Real Estate Section – Vancouver Island
Sara Pope discussed the new marketing regime under the Real Estate Development Marketing Act and David Adams provided a list of things to look out for when acting for buyers of new development units.

The Real Estate Development Marketing Act partly replaced the Real Estate Act on January 1, 2005. Some of the key new requirements are:

• Developers are not permitted to market a strata lot unless they have met certain preliminary requirements and made adequate arrangements to ensure that a buyer will have assurance of title.
• Developers may use buyers’ deposit monies for construction subject to arranging insurance as required under the Act.
• Buyers who do not receive a disclosure statement may rescind their contract at any time. The new Act also allows a seven-day period for buyers to rescind when disclosure statements are given.
• The Act provides for liability for misrepresentation by developers.
• The Superintendent’s enforcement powers are increased.

Mr. Adams noted that the standard contracts that are used tend to be heavily weighted in favour of the developer. It is common for new developments to be pre-sold, often long before the developer has broken ground. The buyers are relying on drawings and specifications prepared by the seller so it is difficult for buyers to know what they are buying. The contract often provides that the seller can change drawings to comply with municipal requirements or make reasonable changes to materials used. Such provisions tend to give the developer a lot of latitude.

Deposits are often held in trust for as long as two years. Interest provisions should be checked carefully. Developers often team up with lenders who offer time sensitive mortgage commitments. If the development takes longer than expected the favourable interest rate can be lost.

Builders’ lien provisions often place the onus on the buyer’s lawyer to discover liens and report them to the seller’s lawyer within a specified time. If the buyer’s lawyer does not report liens within the specified time, the holdback is released to the seller.

The contracts often define the completion date based on the anticipated construction completion but do not tie it to the issuance of an occupancy permit. Because lenders usually require an occupancy permit before advancing funds, buyers could find themselves contractually bound to complete but unable to obtain mortgage funds.

Force majeure clauses are typically broad and cover such things as labour shortages, construction financing problems and other problems that are arguably within the developer’s control.

Many contracts also have a provision that states that the contract does not give the buyer an interest in land and consequently the buyer cannot register a caveat against the title.

In situations where the buyer wishes to get out of these developer-weighted purchase contracts the best avenue of attack may be to concentrate on whether the developer has deviated substantially from the specifications promised in the drawings.

Young Lawyer's Section – Victoria
Mr. Justice Grant Campbell of the Ontario Superior (Family) Court gave subsection members his view of life as a lawyer. He offered guidance in the form of “six freebies”:

• be proud
• be reasonable
• be honest
• beware
• belong/thankful
• be balanced

Proud
People look to lawyers for advice not just when they’re paying for it, but as a member of the community. Law is a very broad field and presents vast opportunities for community involvement.

Reasonable
Pick your areas of effort. Charge appropriately and be direct about the cost of your services. Free yourself from clients who cannot or will not listen or are just crazy. Abandon unreasonable campaigns. If an important principle is involved however, you may need to hang in there even if it means working pro bono.

Expect your clients to be on time but return client calls and treat clients reasonably. Be reasonable in your remuneration expectations.

Honest
Realize that people take what you say as gospel and be cautious and honest.

Never assist clients to be dishonest.

You’re entitled to fair compensation for your services. Be honest. Get a retainer and bill on an interim basis.

Beware
Beware of business schemes your clients come up with.

Belong
Recognize what your hard work has achieved and be thankful rather than arrogant about it. Give back to your community.

Balanced
Don’t forget family. Take time off so you can recharge and regenerate your enthusiasm. Learn to say “No.” Recognize you have much to offer our society. You are not merely what you do. You are who you are.

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

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