Many of my readers and clients with ICBC claims have a keen interest in issues in Family Law. I am happy to introduce a guest blogger Monique Shebbeare, to provide some important insight into the upcoming changes to the BC Family Law Act.

My followers know that I have already recommended Monique as a great option if you are separating, want to split the family assets and sort out custody/access issues reasonably but are running into a few glitches.   

Basically, if you think you are trying to be reasonable and think your former spouse is trying to be reasonable, but you are still having trouble getting things sorted out - then Monique is the person you should call to protect your rights without turning the divorce into an all out war.

By Monique Shebbeare, Heritage Law

Bill 16, the new BC Family Law Act, which will bring broad changes to BC’s family law landscape, has been passed by the BC government. The government estimates it will take 12 to 18 months to implement the law.

Some of the highlights of new Family Law Act are:

·         Children: The best interests of the child will be the only consideration in cases involving children. The divisive language of “custody and access” is abandoned in favour of more neutral language of “parenting time”, “parenting arrangements” and “parental responsibilities”. Parents who lived with the child after he or she was born are the child’s guardians unless the court orders or the parties agree otherwise. A court can appoint a person other than a parent as guardian. Only a guardian can have parenting time and parenting responsibilities, but a person who is not a guardian can have “contact”. Remedies and tools are provided to make sure that parents actually receive and follow through on parenting time they are granted. A process and guidelines are created to deal with a parent’s desire to relocate with children.

·         Out of court dispute resolution: Mediation, agreements, parenting coordination and arbitration are favoured over the courts. Complete disclosure will be required in all cases. Courts will have the power to refer parties to counseling and mediation and to appoint a parenting coordinator to work with the family on implementation of agreements and orders.

·         Child and spousal support: Parents will have the primary duty to pay child support, followed by stepparents and then also by other guardians. Children who have voluntarily left parental care under age 19 may not be entitled to child support. The definition of spouse for spousal support is expanded to included unmarried couples who have lived together for less than two years if they have a child together. For spousal support, a court can consider conduct which causes or prolongs need or affects the ability to pay.

·         Property division: Property brought by a spouse into the relationship, inheritances, gifts and certain kinds of court awards will be excluded from property division (as is the case in many other provinces) – but the parties will share the increase in value of these during the relationship. Family property, which is assets acquired during the relationship and owned at separation, are presumed to be divided equally. The court can divide excluded assets or change the division of family assets only if it is significantly unfair not to.

·         Debts: The courts will be able to divide family debts (incurred during the relationship or after separation to maintain family property), and the presumption is equal sharing.

·         Common law couples: Unmarried couples who have lived together for more than two years will have access to the same property division regime as married couples. (Note: effectively immediately, section 120.1 of the existing Family Relations Act, which operated as a disincentive for common law couples to make cohabitation agreements, has been immediately repealed).

·         Family violence: A new “protection order” is created which will be enforceable by the police. Courts can take family violence into account as part of the best interests of the child when determining parenting arrangements.

·         Assisted Reproduction: For the first time in BC, the law will provide rules for determining parentage of children born with the assistance of sperm, egg and embryo donors and with surrogates.

Legal blogs tend to be rather, well, informative. However a relationship between a person injured in an BC car accident and their personal injury lawyer in Vancouver needs to be a relationship built on trust.  You have to trust that I not only know the law, but have the same values that you do.

Integrity is the foundation of a family as well as a strong law firm.  Because my practice is built on knowing so much about my client's life, I thought it fitting to introduce my family to my readers.

Today, I would like to introduce you to the newest member of my family Simone.  She is this year's model and has a smile that lights up a room.

ICBC often tells people that there is not enough damage to their vehicle, so ICBC is not going to consider compensation for the person (ICBC calls this a LVI or low velocity impact claim).  This position can be a real hardship for some people who have actually been injured in an accident.

I recently did a trial for such a case, Eom v. Chand, reasons unpublished.

On July 6, 2011 Justice Leask provided oral reasons for the trial.  Until days before the trial, ICBC refused to make any offer to Ms. Eom.  When the judgment came in, it was for 12 times what ICBC finally did offer.  At trial, ICBC said that Ms. Eom recovered within two months of the accident.  The problem with that theory is that the evidence of physiotherapist, Angelica Reeve (who Justice Leask called the most impressive physiotherapist he has had testify before him).  She was highly trained with a Master's degree from one of the top universities in the world and Angelica testified that she could feel that the joints in Ms. Eom's neck were not moving properly when she treated Ms. Eom.  ICBC's theory also did not take into account the fact that Ms. Eom's doctor told the judge that she thought Ms. Eom was only 50-60% recovered at the time of the trial.

ICBC attacked the credibility of my client, her doctor, the physiotherapist.  None of the attacks had any merit, but these are the tactics that people often face when in trial.  ICBC never came up with any theory that factored in the fact that Ms. Eom, her doctor, and her physiotherapist, may actually have been telling the truth.

In the end, ICBC told the judge that her claim was worth as little as $2000 dollars.  Ms. Eom had more in "out of pocket expenses" than that.  Justice Leask awarded Ms. Eom $132,042.20 for this so called "LVI denial".

I don't think that the people at ICBC are bad, in fact I have quite a lot of respect for many of the people I deal with at ICBC.  Sometimes, however, the bureaucracy of the ICBC machine can squash you unless you have the will and tools (including a good lawyer) to fight for your rights.

Congratulations to Ms. Eom who had that courage to withstand these attacks and candidly tell the judge her story.

By the way, if you are looking for a good physiotherapist in North Vancouver, I can recommend Angelica Reeve at 19th Street Physiotherapy 604-988-5221.

Check out the brand new and exciting website that McComb Witten published.

http://www.injuredbc.com/

In particular, find out more about some of my past trial wins at:

http://www.injuredbc.com/robert-marcoux.html.

I had the opportunity to meet a number of wonderful people from the Filipino/Canadian community at a charity golf tournament that McComb Witten was proud to be a title sponsor.  It is wonderful to hear about the great work being done by this charity to provide resources to underprivileged children in the Phillipines to help them with their education.

Congratulations to all of those that participated and helped a good cause.

Judging by the comments of readers, this headline and story in the Vancouver Sun struck a cord with angry drivers...or more accurately angry people who comment on such stories.  See the article here:

http://www.vancouversun.com/news/Jaywalker+driver+blamed/5210479/story.html

The accident occurred just outside of the convergence of three school zones, in an area where there is frequent jaywalking by students.  The trial judge found that the driver was negligent for not expecting that a pedestrian may be present, even though the pedestrian, a 16 year old boy, was not in a cross walk.

The judge outlined the negligence of both the driver and the pedestrian and split liability 60% against the pedestrian and 40% against the driver.  This means that the pedestrian will only receive 40% of the cost of medical care and other damages.  The rest of the costs will be born by the family.

The trial judge described the accident, some of which is below:

Once in the southbound lane, she proceeded to a point just beyond where the road expands to include a right turn lane. She then moved into that lane. It was empty; there were no cars in it between her and the Leathead intersection. Both the through lane and the left turn lane were full of vehicles, and those vehicles were stopped.

As Ms. Plummer proceeded along the right turn lane, she noticed a large tractor-trailer truck to her left. It was stopped in the line of through traffic. As a result, her view of the left turn lane and the through lane in front of the truck was entirely obscured.

Neither the trial judge nor the Court of Appeal makes reference to s.158 of the Motor Vehicle Act which reads:

158 (1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except

(a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn,

(b) when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or

(c) on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be made safely, or

(b) by driving the vehicle off the roadway.

The motorcyclist entered the right turn lane lawfully and was lawfully allowed to overtake the large tractor trailer on the right, if it was safe to do so.  This imparts a duty on the driver to take steps to ensure that it is safe to pass on the right for the exact reasons that this accident occurred.

This section of the Motor Vehicle Act is seldom relied upon by lawyers in cases like this and I do not understand why.  It codified the reason why the motorcyclist in this case should have been more careful.  Had the lawyer told the trial  judge about this section and the trial judge relied upon it, then the entire analysis about when to expect a jaywalking pedestrian would have been unnecessary.

In my view, this case does not expand the law in any way.  Drivers and pedestrians have to each be careful on the roadway and neither can just barrel along without regard for the other.

You can read the actual Court of Appeal decision here:

http://www.courts.gov.bc.ca/jdb-txt/CA/11/03/2011BCCA0335.htm

and trial decision here:

http://www.courts.gov.bc.ca/jdb-txt/SC/10/10/2010BCSC1017.htm

With some recent high profile cases regarding pedestrian/car accidents, I thought  would write a few posts on what are the rights and obligations between cars and people using the streets and roads in British Columbia.

The first step is knowing what a crosswalk is.  Easy right?  Wrong!  There are "marked crosswalks" and "unmarked crosswalks".

Marked crosswalks are easy.  They are the ones with painted lines on the roadway.  Unmarked crosswalks are seemingly everywhere...and whether or not you are in a crosswalk makes a HUGE difference on the issue of fault if you are ever struck by a car.  Unmarked crosswalks are defined by the Motor Vehicle Act, like this:

"crosswalk" means

(a) a portion of the roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface, or

[below is the definition for unmarked crosswalks]

(b) the portion of a highway at an intersection that is included within the connection of the lateral lines of the sidewalks on the opposite sides of the highway, or within the extension of the lateral lines of the sidewalk on one side of the highway, measured from the curbs, or in the absence of curbs, from the edges of the roadway;

OK, so you have to read it very carefully to understand it and even police get this wrong half the time.  Essentially, if you are on a sidewalk and there is a sidewalk going in the same direction at the other side of the street, then you are in an unmarked crosswalk when you are crossing the street. 

Crosswalks, marked or unmarked, don't take away the broken bones, so be careful crossing the road.  However, you are undoubtedly better off to cross the street in a crosswalk, so take the steps and time to cross at a crosswalk.

Look for more posts on Pedestrian Safety.

The following post contains enough important information that I am reposting it here on this blog.  It was originally posted in June 2011 at Vancouver Personal Injury Lawyer:

As I was getting my news (Canucks) hit from the Vancouver Sun, I saw a link to an article titled:

B.C. woman rear-ended in accident may lose driver's licence

www.vancouversun.com/technology/woman+rear+ended+accident+lose+driver+licence/4832794/story.html

The story is essentially about a woman who was injured in an accident that wasn't her fault, but she still owes money to ICBC to the tune of about $42,000.

The issue this woman faces is that, according to the judge, she seemed to have sued the wrong person.  The person that ran into her said she slipped on an oily substance on the road.  The owner of the vehicle leaking the oily substance was not discussed by the judge, but it seems that she did not sue the "John Doe" or ICBC.  I don't know when she hired her lawyer, but the person that was negligent was not known to her and the hit and run provisions would have applied to her.

If you have a hit and run situation, you have very, very strict obligations - failing which your claim could be dismissed and you would owe money just like this poor lady.  It highlights the importance of hiring a lawyer for your ICBC claim.

If you have questions call me at McComb Witten at 604-255-9018.

A last summer, I did a trial for a client where she received an outstanding judgment.  While preparing her case for trial, I met Jill Renowitzky my client's physiotherapist.  I was fully impressed with her ability to explain what was wrong with my client.  I learned that Jill had a special interest in preparing meaningful clinical records and she works with all of the physiotherapist on her team to develop a good system to record the treatments.

My client was impressed with Jill's skills as a physio and it was clear that Jill went above and beyond to get my client the resources she needed to help her recover.

For these reasons, I have absolutely no hesitation in recommending Jill Renowitzky or her team to anyone looking for a good physiotherapist.

For our clients at McComb Witten the PT Medical and Health clinic has an added benefit as it is located about 3 blocks from our office just across Broadway at Commercial.

To find out more about PT Medical and Wellness, just click on the logo on the side of my blog under Preferred Service Providers.

Just so it is clear, I am NOT receiving a financial benefit from anyone at PT Health or any of my preferred service providers.  I just want to highlight professionals who I have met and respect.

Green does NOT mean that you have the right of way over all other vehicles.  Before you enter an intersection, even on a green light, you have obligations as a driver.

Section 127 of the Motor Vehicle Act requires drivers facing a green light to let vehicles or pedestrians lawfully in an intersection to clear.  That is, vehicles lawfully in the intersection have the right-of-way over vehicles with the green light.  It states:

127  (1) When a green light alone is exhibited at an intersection by a traffic control signal,

(a) the driver of a vehicle facing the green light

(i)  may cause the vehicle to proceed straight through the intersection, or to turn left or right, subject to a sign or signal prohibiting a left or right turn, or both, or designating the turning movement permitted,

(ii)  must yield the right of way to pedestrians lawfully in the intersection or in an adjacent crosswalk at the time the green light is exhibited, and

(iii)  must yield the right of way to vehicles lawfully in the intersection at the time the green light became exhibited, and

As a personal injury lawyer in Vancouver, I have seen too many accidents where a driver of a vehicle approaching a series of vehicles stopped at a red light.  The driver moves into the curb lane as he approaches the light it turns green.  The driver then accelerates to pass the vehicles stopped in the intersection.

The problem is that when one is passing on the right there are some blind spots where an unwitting driver will not notice a danger ahead.  The danger usually takes the form of a pedestrian, bicyclist, or slow driver trying to clear the intersection when the light turned red on them. [In "Jaywalker hit, driver blamed", I discussed the importance of s.158 of the Motor Vehicle Act (Passing on the Right).] http://personal-injury-lawyer-vancouver.blogspot.com/2011/08/jaywalker-hit-driver-blamed.html

The driver making no attempt to determine if it is safe to pass on the right, blindly speeds into the intersection failing to yield the right of way as required by s. 127 completely unaware of the various driving provision that have been violated and the danger that is about to be caused by his negligence.

A number of years ago,  I had a case that was about 3 weeks out from a three week trial.  My client was involved in a relatively small accident in a parking lot. The driver of a jacked up truck jumped into the truck and backed up into the side of my client's car.  Unfortunately, my client was looking in the opposite direction for a parking spot.  Immediately after the impact, my client developed sharp shooting pain radiating down her arm.  She had numbness and tingling in her hands along with very bad headaches.  The symptoms persisted.  Various medical testing demonstrated a disc protrusion in her neck.  Six years after the accident the doctors were still trying to decide if neck surgery was going to be beneficial.

To defend the case, ICBC hired a neurosurgeon who wrote an opinion that he thought that my client's disc protrusion was not caused by the accident.  He saw a reference to a disc protrusion in her records 15 years before the accident and said that the accident was not the cause of her symptoms.

The neurosurgeon's opinion presented quite a problem for my client's case.  If he was to be believed, then my client's claim would be very small and she was very likely to owe ICBC money following a trial as ICBC had made her an offer that was less than the value of her claim but more than the value if this neurosurgeon were to be believed. (In BC if you reject a reasonable offer, the party making the offer can show the judge the offer after the trial and if the judge awards less than the offer then the injured person owes ICBC the costs and expenses of defending the claim.)

My client was heading into a 3 week trial with considerable risk.   I knew that if I could knock out the neurosurgeon's opinion, my client's risk would be minimized.  The problem, of course, is that outcomes of trials are difficult to predict and I would not know until the middle of the trial how much I was able to undermine the neurosurgeon's opinion.

As luck would have it, the neurosurgeon was unable to attend the trial and the lawyer for ICBC asked us if we would agree to a video deposition, where we would videotape his evidence before trial and present it at trial.  We, of course, agreed to the video deposition.

Look for the story to continue in Cross Examination of a Neurosurgeon - Part 2!

The devil, they say, is in the details and it is very true for cross-examination.   

The video deposition started as expected.  The lawyer for ICBC introduced the neurosurgeon with his very lofty credentials.  He then went over the doctor's report with him.  The neurosurgeon confirmed that he did not think that my client's symptoms were caused by the accident rather from a disc protrusion following two accidents some 15 years earlier.  He confirmed that my client did not require surgery.  He was then turned over to me.

As a Vancouver personal injury lawyer I have a few tools in my toolbox to deal with witnesses.  The most used tool is a stick.  Most often the better tool is the carrot.  Some witnesses require the stick, but I suspect we use the stick because it makes us feel like a lawyer (the sad reality is that most lawyers feel like paper pushers rather than lawyers).  We are not immune from popular culture and good T.V. shows.  The reality is that one can be much more cagey whilst being kind than mean.  I, thankfully, resisted my urge to be mean and took a pleasant tone with the ICBC doctor.

I had three goals I wanted to accomplish with my cross-examination: get the doctor to comment that vehicle impact is not critical (I had a fender bender as you will recall), get the doctor to change his opinion on causation, and get the doctor to confirm that my client was disabled from her injuries - no small task I set for myself!!!

I started by summarizing what I understood the doctor's analysis to be.  He listened carefully and agreed that he basically was saying that the earlier accidents caused the disc protrusion and that the accident that I represented my client for was not responsible for her symptoms.  I confirmed that he came to the later conclusion because the first record of complaints in the family doctor's records was some 4 months post-accident.

Goal 1 - impact not important

I then asked the doctor what speed the vehicles were going in the first accident 15 years ago. He, of course, did not know.  I asked about direction...vehicle damage.  He didn't know. He didn't know.  I cycled through the same questions for the second accident 15 years ago with, predictably, the same results.

I then confirmed that vehicle speed, direction and damage were all not important for determining the cause of a disc protrusion.  He happily agreed.  I suggested that all that was really important was to look at the medical records.  He, again, graciously agreed.

Goal 1 - accomplished

Goal 2 - Getting the doctor to fold on causation - ducks lined up and ready for knocking down

Leave a comment if you think you know how the ducks are lined up by this stage.

Look for Cross-examination of a Neurosurgeon Part 3 on a future post to see how this cross-examination played out.

As a Vancouver personal injury lawyer, I regularly get asked whether you have to go to an appointment that ICBC sets up.  The question is straightforward, the answer is not!

ICBC is entitled to some medical evidence if you are looking for some of the "no fault" benefits.  A report for that purpose may or may not count towards the medical evidence that the defendant (through ICBC) is entitled to in the Tort claim.

Once a lawsuit is started, there is a big different between a first assessment and a subsequent assessment.  Sometimes an injured person has to go to multiple ICBC doctors.  Other times, ICBC is just trying to send a person to a different doctor to unfairly bolster their case or get a new opinion.

In Dillon v. Montgomery, 2011 BCSC 1417, the ICBC appointed lawyer for the defendant sent the injured person (the plaintiff) to an orthopaedic surgeon for an assessment.  The defendant's lawyer then wanted to send the plaintiff to a neurologist.

The Plaintiff resisted saying that they provided an opinion from a neurologist confirming that the plaintiff has some neurological symptoms, but these symptoms were NOT related to the accident.

The Master (essentially a judge of interlocutory or pre-trial matters) agreed with the plaintiff.  Looking at the defendants arguments, it appeared that they wanted the opinion to confirm that the symptoms were NOT related.  Given the evidence of the plaintiff's expert, they would only need this assessment to confirm a negative.  Doesn't make much sense does it?  Well the Master didn't think so either.

Often these arguments are thinly veiled attempts at getting new opinions.  Could be that ICBC didn't like the opinion they had and wanted to used this opportunity to get some new evidence.

 I would like to thank the ladies and gentlemen of the jury who sat through two weeks of evidence and gave up their Saturday to deliberate.  They returned a fair and reasonable verdict that clearly weighed the totality of the evidence.  


This trial was a coming out party for Meghan Neathway and the McComb Witten litigation team.  Meghan did an amazing job as co-counsel on this trial.  She has a nose for detail and a heart of  a lion.  Meghan was a key contributor in the organization and selection of our evidence, refinement of our theory of our case, and preparation of our witnesses.  She did an amazing job with the witnesses she took at trial.  What I like most about Meghan's approach is her easy ability to be genuine even on a stage such as a jury trial.  Congratulations to you Meghan - you are a fine trial lawyer.


Anybody looking for a great Vancouver personal injury lawyer would be in great hands with Meghan.  Check out her bio:
Meghan Neathway's bio


Finally, our client is a class act.  A brilliant gentlemen with integrity and courage.  He suffered life threatening injuries and has the strength of character to make the most of his situation.  Two broken legs, brain injury, skull fracture, blowout fracture of his eye socket, fracture through a joint at the base of his skull, two broken bones in his back, and a shattered tailbone.  He made it out of his wheelchair 21/2 months later and was back at work 2 weeks after that!!!  ICBC told him that "he was the author of his own misfortune".  He had the courage to take his case to a jury and they found the driver that hit him 75% responsible for the accident.  Again, not exactly what we were looking for, but was a fair and  reasonable assessment of the evidence.  All in all the verdict was entered for $640,000 less 25% for contributory negligence.


The jury gave our client the resources to get the medical care he needs, compensated him for his past wage loss and gave compensation for the hit to his career and gave him a fair and reasonable amount for his pain and suffering.


Thank you to our client, our judge, Mr. Justice Abrioux, my colleague Meghan Neathway, and the jury.  It was great to see our justice system work.

As a Vancouver personal injury lawyer, I am regularly asked by clients and friends for a referral to a good family lawyer or help with wills and estates.  Because I practice exclusively in BC car accidents, I know lots of Vancouver personal injury lawyers and ICBC claims lawyers.  I do not, however, run across many family law or estate planning lawyers in my practice.  I am happy to let my readers know of a couple of fine family law and estate lawyers to whom I can confidently refer clients.


Monique Shebbeare is a lawyer at Heritage Law and gives legal advice on wills, estate planning and out-of-court family law issues.  Monique has a solid legal background.  On the estate planning side, she advises and assists clients with wills, powers of attorney, trusts, blended family estate planning, donor and surrogacy agreements, marriage and cohabitation agreements, obtaining probate, and administering and distributing estates.  


What I personally like about Monique's style and skill set as a Vancouver family law lawyer is that she combines compassion with strong legal analysis to help clients by giving practical advice for their situation.  She focuses on non-litigated separations and divorces.  I, personally, like this as it keeps family members focused on working through the issues.


Looking for a good Vancouver family law lawyer or help with estate planning, contact Monique.  Here is her contact info and bio:


Monique Shebbeare's bio


Angelique Poutissou practices primarily in the areas of estate litigation and planning.  She is the only lawyer I know of that practices in the area of committeeship applications.  This is an area that  is of key importance to lawyers, like myself, working with severely brain injured clients.  She is also a lawyer anybody who is in charge of caring for elderly parents should keep in mind.


Angelique Poutissou's bio