Generally speaking, spousal and common-law partner sponsorship applications rest on three main pillars:  the eligibility of the sponsor to sponsor; the existence and genuineness of the marriage or common-law relationship; and the admissibility of the foreign national applicant for Canadian permanent residence status (that is, medical and security clearances). Despite the lack of public attention and controversy, there are many important decisions which need to be made and factors to be taken into consideration when planning or making a Canadian permanent residence application in this category, such as:

• Whether to use the “Inside Canada” or “Outside Canada” process
• The timing of the medical examination
• How to prove the existence and genuineness of the relationship
• How to demonstrate the intention to return to Canada by a Canadian citizen sponsor residing outside Canada
• Issues pertaining to children, and
• Importation of personal belongings to Canada.

Robbie also notes that the above list is intended to illustrate only some of the issues and it is by no means exhaustive.

Because family reunification is an important objective of Canadian immigration legislation, in keeping with that objective, Citizenship and Immigration Canada processes these applications on a priority basis.  Robbie Sheffman regularly deals with spousal and common law sponsorships. If you would like more information or think Robbie may be able to help you visit his website (www.immigrationlawbc.com) or call his office at 250.590.2951 to make an appointment.

• divorce
• common law relationships (rights, obligations and potential issues)
• custody and access
• property division (aka division of assets)
• spousal and child support
• separation and prenuptial agreements
• mediation and court proceedings.

Among the wide variety of Canadian citizenship and immigration issues on which Robbie advises, he frequently advises employers who hire foreign workers (or are thinking about hiring foreign workers) and human resources professionals involved in the process. He notes that clients dealing with foreign workers must be aware of upcoming changes to the Temporary Foreign Worker Program (”TFWP”), recently announced by Citizenship and Immigration Canada, and scheduled to take effect on April 1, 2011.

If you are interested in finding out more about the TFWP changes and how they may affect your business operations please contact Robbie at your convenience. If you have a group of ten or more employees and human resources professionals who would benefit from an overview of the changes, talk to Robbie about a customized workplace presentation.

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What if you are a plaintiff and you either don’t know where to find your defendant or they are located in another jurisdiction (maybe even outside Canada)?

In these cases it makes sense to turn to professionals like Dye & Durham who offer a full range of process serving options including skip tracing if you are unable to locate your defendant.

If you are getting married, separated or divorced, it’s time to think about your will. The laws of British Columbia with regard to familial relations and wills and estates interact in a way that you need to be aware of if you want to make sure that wishes are honoured if you pass away.  – Joseph Broadhurst,  Henderson Heinrichs, Lawyers

We asked Joe to highlight some of the common issues you need to consider when you change your family status.  While Joe notes that every fact situation is unique and you should always consult a family lawyer qualified in your jurisdiction the following basic issues arise in BC:

If you are getting Married:

Wills in BC are governed by the Wills Act.  Under section 15 of the Wills Act, your will is revoked if you get married, unless your will specifically contemplates your upcoming marriage.  If your will is revoked and you pass away, it will be as though you died with no will at all, and your property will be distributed according to the Estate Administration Act.  There are at least two disadvantages to this situation.  First, if you die without a will (also known as dying intestate) a court application is required to appoint an administrator for your estate.  This process is both more costly and time consuming than having your property distributed under a valid will.  Second, the Estate Administration Act, Part 10 provides set formulas for distributing your property which may not match your wishes or be suitable for your family situation.  So if you get married, make sure you revisit your will if you want your final wishes to be respected.

If you are getting Divorced:

Unlike getting married, getting divorced does not cancel your will.  However, it can change your will.  Any parts of your will that name your former spouse as executor or as a beneficiary of your estate are cancelled.  The division of your estate can be complex and unpredictable if these portions of your will are cancelled.  If you are getting divorced and you named your former spouse in your will, you should seriously consider getting a new will.

If you are separated and planning on getting Divorced.

The process of getting divorced can often take some time (and in most cases takes at least a year).  Even if you are separated from your spouse and have started divorce proceedings, your will is still valid.  If you are separated but not divorced and do not have a will, a substantial portion of your estate will go to your spouse if you pass away before getting divorced.  Under both of these circumstances, you should consider immediately getting a new will which explicitly sets out that you are making the will with your impending divorce in mind, and which reflects your wishes.

If you have questions about how your change in status affects your will and what you can do to arrange your affairs to make sure your loved ones are protected you are welcome to call Joe Broadhurst or any of the lawyers at Henderson Heinrichs (604.669.3500) or visit their website at bcfamilylawyers.com.

Recently a number of callers have asked about probating a will.  To help readers understand probate in general terms we asked Brian Loughlin of LawOne member firm RDM Lawyers to answer a few basic questions.  The results are below and if you have further questions you are welcome to contact Brian at your convenience.

LawOne:  What exactly is probate?

BL: Probate is a legal procedure where your Will is approved and the appointment of your executor is confirmed by the courts under BC legislation.  Your executor is the person responsible for making sure debts existing at the time of your death are settled and the wishes set out in your Will are carried out.

LawOne:  Is probate necessary in every case?

BL:  That depends on factors such as the simplicity of the estate, the character and value of the assets and the number of dependants in your Will.  It may be that your Will does not have to be probated, although very often, whether it is by choice or circumstance, a Will may end up being probated.

LawOne:  Why would an executor want a Will probated?

BL: There are a number of reasons. For example, if the executor has not been through the legal confirmation process (i.e., probate), third parties such as government agencies and banks can, and often do, refuse to recognize the executor’s authority until the courts have validated the Will.  This can slow down the distribution of assets to beneficiaries. Whenever a Deceased’s estate holds land a probate will be necessary. There are also some situations where applying to probate a Will may be advantageous.

LawOne:  Can you give an example?

BL:  In British Columbia the time period for commencing an action under the  Wills Variation Act (the “Act”) does not start to run until probate has been issued by the court.  Under s. 3 of the Act if a Deceased’s spouse or child seeks to challenge a Will under the provisions of the Act he or she must start their action within 6 months of the issue of probate (6 months from the date the court approves the Will and confirms the appointment of the executor). If you are an executor your job is to ensure the settlement of the debts of the deceased’s estate and the smooth distribution of assets to beneficiaries under the Will.  Therefore, it’s to your advantage to take steps to confirm the date after which a Will can no longer be challenged so as to avoid any liability attached to incorrect or unjust distribution of the assets under the Will.  Similarly, if you are a person seeking to challenge a Will, determining when probate was issued is critical to establishing whether you are within the limitation period set out in the Act.

LawOne:  Do you really need a lawyer to probate a Will?

BL:  No.  However, probating a Will can be complex and time consuming.  Most executors have other responsibilities and commitments that demand their time and attention.  In addition, an executor can become personally liable for certain obligations if the estate is not administered in accordance with our laws.  Having a lawyer take care of probate and advising with respect to the administration of the estate is one way to help minimize an executor’s personal liability.

Being in a car accident is news – bad news, but news nonetheless.  However, as the personal injury lawyers at Taylor & Blair caution it’s not news that should be shared on social media. The lawyers at LawOne member firm Taylor & Blair caution:

It is imperative to your claim that you do not post or have others post photos of you that could be wrongly interpreted on the internet or any social networking sites, such as Facebook, Twitter or MySpace.  ICBC has been known to pursue information and photos of personal injury claimants on these sites and to use it to the detriment of personal injury claimants.

Graham Taylor and Kevin Blair are quick to point clients to a recent article in The Canadian Press reviewing cases out of the Newfoundland and Ontario courts where personal injury claims were reduced or potentially jeopardized because evidence contradicting the extent and impact of injuries alleged by the plaintiffs was found on social networking sites like Facebook.

In the Newfoundland case the plaintiff, Dennis Terry, was claiming $1.3 million for his injuries.  However, after reviewing the plaintiff’s Facebook profile the judge reduced the claim to $40,000 for general damages and suffering because the profile content did not support the plaintiff’s claims.

Read the full judgement in Terry v. Mullawney & Terry v. Sinclair.

In the second situation, Ontario Superior Court Justice David Brown ruled that the defence was entitled to cross examine a plaintiff on the content of his postings on Facebook including content that was shielded by privacy controls and therefore not publicly available.  The judge rejected the plaintiff’s argument that Facebook privacy controls should operate to prevent the defendant’s lawyer accessing information in aid of his client’s case.  Instead the judge found that because the primary purpose of social networking sites (like Facebook) is to enable people to share information about their lives that this information may well be relevant to discrediting a plaintiff’s claims about their injuries and therefore was potentially relevant to ensuring a fair trial.  The court ruled that it was unfair to deny the defendant access to the material.

So, just because you have limited access to your profile on a social media platform or social networking site DO NOT assume that it will protect information displayed or transmitted through those sites from a court order.  The best policy is to let your lawyer handle any photos or other evidence regarding the nature of your injuries.

Need a lawyer to help you with your ICBC claim or have questions about your personal injury case?  Contact the lawyers at Taylor & Blair.

What if you have no where to go?

Some women stay because they feel they have no where else to go.

Rather than deciding to tough it out (the statistics on death at the hands of a spouse or partner show this is not a good idea), if you are in an abusive relationship and need to get out you have options.  Shelternet is one.  As their website explains, Shelternet

was created to provide reliable and up-to-date information for abused women, their family, friends, and colleagues in Canada. Please browse the website or take a look through our special sections on topics such as understanding abuse, find a shelter, or abuse and children.

There is information on the Shelternet site designed for the specific needs of teens, children, family + friend (support information).

To access Shelternet in:  French, Spanish, Polish, Vietanamese, Chinese, Arabic, Farsi and Punjabi go to Shelternet Translations.

Alternatively you can contact the Transition House closest to where you live. The number one priority is your personal safety and that of your children.  You can consider your options after you are in safe place.

A Transition House provides:

• a safe place for you and your children
• food and other necessities
• temporary shelter
• support in getting financial, medical or legal help
• emotional help and counselling

The Legal Services Society Family Law Website also has information on dealing with abuse.

Some things you can do if the police won’t do anything

In some cases you may have already reported the matter to the police and have been told there is insufficient evidence to take any action against the person making the threats.  Obviously, if you are being threatened with violence, stalked or you are fearful because you are being harassed this is both extremely frightening and frustrating.

However, there are some steps you can take to empower and protect yourself.  The following list with links provides some ideas to get you started:

Suggestions and strategies to increase your safety if you feel intimidated, threatened or you think you are being stalked

Need protection from someone who has physically abused you or is threatening to do so?  Review detailed info on peace bonds, restraining orders and no contact orders or you can read the LSS Fact sheet (which is also translated) here Fact Sheet.

Further information and resources dealing with family situations, safety, abuse and help to stop family violence can be accessed through the Clicklaw web portal.

Unfortunately, the apostille system only applies in countries where the government has signed The Hague Apostille Convention Abolishing the Requirement of Legalization for Foreign Public Documents (1961). The United States is a signatory and the State Department – Bureau of Consular Affairs provides some further definitions of the functions of an apostille and where to get more information on signatories to the convention.

BUT – Canada is not a signatory.  Therefore, there is no apostille system in Canada.  Instead we have an equivalent process called “legalization and authentication” which normally means that the notarized document must be sent to the relevant Law Society or Society of Notaries where the governing body then verifies the signature of the lawyer or notary (as the case may be). An additional step is usually necessary where the consulate of the foreign country then also verifies the approval of the law society or notaries society, sometimes in conjunction with a Canadian government office.

It is very important to check with the embassy or consulate of the foreign country where you intend to use the document to determine what rules must be followed for the document to be accepted as proper documentation in that particular country. The rules do vary from country to country.  Therefore, it is prudent to call the person requesting the apostille, tell them that the process is not available in Canada because Canada is not a signatory to The Hague Apostille Convention and ask what they accept as an alternative. Sometimes they will require a regular notary stamp, then a certificate from the Notaries Society or Law Society that authenticates the notary/lawyer, then sometimes also a certificate from the relevant consulate authenticating all the previous documents.

There are services that will handle the legalization and authentication process for you.  Because it can be a complicated process you may wish to consider paying the fees and saving yourself the time and brain cells trying to figure out what to do.  A quick Google search reveals a number of services set up to help people with obtaining the equivalent of a certificate of apostille.  These businesses include:

Ottawa based Enterprise Legal which describes the process in greater detail along with the fees they charge for various services.

Document Services (Toronto) which has a convenient list of apostille countries along with information about the steps, costs and processing times.

Red Seal Notaries (with walk-in locations in Toronto, Mississauga, North York, Ottawa…and Vancouver!).  The Red Seal Website also has a list of Canadian locations for many embassies and consulates.

Another option, for those seeking a certificate of apostille for use in the State of Nevada (at least with respect to claiming a refund on taxes levied on casino winnings), is to use a local notary to handle the issue.  We thank a caller who persevered and emailed to tell us that this seemed to be the easiest approach under the circumstances – since she confirmed receipt of her tax refund, it appears to have worked.