by Shelley Bentley

The CBABC sponsors 74 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.

Administrative Law-Victoria
John Waddell, QC, litigator and softball and hockey coach, delivered a paper on general principles regarding court intervention in the decisions of domestic tribunals and non-profit sporting associations. He noted that the fact that the majority of sports organizations are run by volunteers makes them particularly susceptible to decision-making infused with emotion and promotion of self-interest. The most common areas where disputes arise are:

• The granting or withdrawal of membership;
• The disciplining of members or participants;
• Mobility of members within and between organizations; and
• Governance issues at the executive level of the organization.

He noted that courts are reluctant to intervene in the decision-making of sports organizations and other private bodies and will only do so if it has exceeded its jurisdiction, failed to comply with the rules of natural justice or acted in bad faith. In particular, courts will generally not define terms in the rules of a private body and is primarily concerned with process. However, Mr. Waddell said inroads have been made in recent years. Courts have shown a greater willingness to concern themselves with the decisions of some “private” bodies, either on the basis that express or implied contractual rights or obligations have been breached or where a member’s livelihood is at stake.

ADR-Victoria
Catherine Morris, current Director of Peacemakers Trust and former Executive Director of the Institute for Dispute Resolution, spoke about the role of apologies in conflict resolution. She noted that people in conflict often want nothing more than an apology and discussed the pros and cons and legal consequences of apologizing.

Business Law
Tax lawyer, Joel Nitikman, presented 10 tax tips for solicitors. He discussed:

• New tax rules for restrictive covenants;
• The law surrounding when a “disposition” occurs;
• New restrictions on interest deductibility and other losses;
• Section 85(1)(e.2) of the Income Tax Act regarding fair market value determinations where shareholders transfer property to corporations;
• Taxation of stock options;
• Effect of shareholder agreements on control;
• Negative ACB rules for partnerships;
• New NRT/FIE rules;
• Vertical amalgamations-disposition trap; and
• New rules for qualified dispositions to trusts.

Family Law-Vancouver
Dinyar Marzban led a discussion on some recent developments surrounding section 9 of the Federal Child Support Guidelines. Under section 9 parents who have a shared custody arrangement may apply for exclusion from the regular Guideline child support amounts. This provision is premised on the theory that a shared custody arrangement will have increased overall costs for both parents as a result of duplication so requiring payment of the base Guideline amount is unfair. Mr. Marzban described the four basic formulas used in determining support quantum in shared custody arrangements outlined by Mr. Justice Romilly in the C.R.H.E. v. F.G.E., 2003 BCSC 1401: straight set-off; pro-rated set off; straight pro-rated; and pro-rate multiplier.

Justice Romilly noted that regardless of which formula a court decides to use, these factors should be considered:

• The purpose behind the variation of the child support under s. 9;
• The cliff effect or sudden drop in income of the custodial parent as the access parent crosses the threshold between 39 per cent and 40 per cent access;
• The fact that variation is more readily justified if the access parent has less means than the custodial parent and would have difficulty in meeting increased expenses occasioned by greater access; and
• The Court must not give undue weight to the amounts set out in the applicable tables for each of the spouses without giving sufficient consideration to the increased costs of shared custody and the condition, means, needs and circumstances of each spouse.

Immigration Law
Representatives from Customs and Immigration Canada discussed the new permanent resident card requirement for resident non-Canadian citizens re-entering Canada commencing in 2004. They shared details about the operation of the processing center and commented on the reasons for the 30 per cent return rate for applications.

Wills & Trusts-Okanagan and Family Law-Okanagan (Joint Meeting)
Dinyar Marzban gave a paper on “Family Law Considerations in Structuring Trusts and Other Estate Plans” focusing on settling trusts to protect assets from spouses of beneficiaries. In particular, he commented on the recent use of section 68 of the Family Relations Act regarding postnuptial settlements and the cases of Grahame v. Grahame (2002, BCSC) and EJR v. KDA (2002 BCSC). In Grahame the BCSC held that in order to qualify as a postnuptial settlement the trust settled after marriage by the parents of one of the spouses had to have some causal connection to the marriage in the sense that the benefit conferred by the trust on a spouse should be conferred “…in his or her character as a spouse, and with reference to the marriage.” Mr. Marzban commented that the Court adopted a less restrictive definition in EJR v. KDA and held that section 68 “does not preclude a determination that a ‘settlement’ may include a deed or other form of transfer of ownership that has the effect of depriving one spouse of property to which he or she might otherwise be entitled.”

Mr. Marzban noted the limited jurisprudence dealing with s. 68 and the unpredictability of its application. In trying to avoid its application he warned against including a spouse as a beneficiary when drafting a trust.

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

This article was published in the February 2004 issue of BarTalk. © 2004 The Canadian Bar Association. All rights reserved.