Top 4 Things NOT To Do If You Need to Dismiss an Employee

Small and larger business owners need to make difficult decisions everyday: acquire new clients, build relationships with interested stakeholders, pay invoices, redefine their brand and ensure staff are completing all assigned tasks. Given that an employer-employee relationship evolves over time, managers sometimes must make the difficult decision of terminating a person’s employment. There is no perfect way to dismiss an employee but there are some things managers should simply not do when letting an employee go.

Mislead Employees About their Rights

The Ontario Employment Standards Act, 2000, S.O. 2000, c. 41, is meant to protect both employers and employees alike. While management can certainly put an end to the employer-employee relationship, it has a duty to remain honest to the employee. Employers should never misinform employees about the amount of money they are entitled to under the Act.

An employee is entitled to notice of termination if he or she has been continuously employed for at least three months. Rather than giving an employee notice, employers can also pay termination pay. The amount of notice to give to an employee depends on the period of employment of that person. More information on the required notice can be found here

If an employee has specific questions about their rights and amount of notice they are entitled to, it is good practice for employers to encourage employees to seek independent legal advice on the matter.

Force the Employee to Sign a Release the Day of Termination

Whether employees choose to exercise their right to get legal advice, employers should always make sure employees have had reasonable time to review their termination package. Particularly because managers are in a position of power, in order for any signed release to remain binding and enforceable, it is beneficial not to rush the process of termination. There will always be time to sign a release at a later date. Releases signed under pressure may be set aside in certain circumstances by courts.

Prevent an Employee From Retrieving Personal Belongings

When an employee finds out they have just been fired, they generally feel very vulnerable. Expect them to be emotional, argumentative and sometimes even irrational. Whatever you do, do not add fuel to the fire. Keep the meeting short and brief. Know exactly what you are going to say, invite only those who need to be present and always make sure you have done the necessary steps to protect sensitive information.

This may entail coordinating with your IT department to disconnect any digital access the employee has to certain databases, store files away and changing certain codes or passwords. While it is important to make sure that any client or third-party file be kept safe, it is bad practice to give the employee the walk of shame by having a security guard escort them out of the building in front of other employees. The employee is already hurting from the employer’s decision, let them keep their dignity. Allow them to retrieve their personal belongings after work hours when most staff have left them office.

It is however reasonable to ask for them to return any keys, cards or parking pass to reduce access to the building. If the employee was provided with a business credit card, make the necessary arrangements to have the card returned and contact your financial institution right away to inform them the employee in question no longer has authorization to make any transactions on the business’ behalf.

Discuss the Termination With Others

Many people in businesses, especially larger ones, enjoy gossiping – that includes those in management positions too! As tempting as it is to discuss an employee’s termination with others, resist the urge. As an employer, if you decide to dismiss an employee, it is safer to send a brief general e-mail letting others know that the terminated employee will no longer be with your business. Leave any other details out. If employees ask questions, respectfully decline to comment. Also avoid discussing these matters outside the workplace. It generally makes the employer look worse than the employee. In the worst of scenarios, this may entice a disgruntled employee to commence a lawsuit for defamation against you.

Karen Kernisant is a lawyer at Aubry Campbell MacLean and practices Employment and Family Law as well as Civil Litigation.

Faut-il toujours exiger un état financier de son ex-conjoint lors d’un divorce?

Lorsque deux époux décident de mettre un terme à leur mariage, la séparation des biens matrimoniaux devient souvent une source de conflits. C’est une des raisons pour lesquelles la Loi sur le droit de la famille, L.R.O., 1990, c. F.3 prévoit que les époux doivent mutuellement échanger leurs états financiers pour faciliter une séparation juste et équitable.

Qu’est-ce qu’un état financier?

L’état financier est un formulaire rempli par chaque époux où chaque partie divulgue à l’autre son salaire et toute autre source de revenu, ses dépenses, ses dettes et la totalité des biens matrimoniaux. Sauf certaines exceptions, la Loi sur le droit de la famille édicte que chaque époux à droit à la moitié de la valeur des biens accumulés pendant le mariage jusqu’à la date de séparation. La divulgation financière constitue donc une étape cruciale du divorce.

Les époux doivent-ils divulguer d’autres documents financiers?

Chaque époux peut aussi exiger de recevoir des documents supplémentaires pour vérifier la véracité des renseignements indiqués par l’autre partie dans son état financier. Il peut aussi d’être une bonne idée de demander une copie des reçus pour les dépenses du foyer conjugal, les relevés d’impôts et relevés bancaires de l’autre époux, les détails sur une police d’assurance de l’autre époux, un rapport d’expert sur la valeur d’un bien ou toute documentation qui permet à l’époux d’effectuer des choix éclairés sur la séparation des biens matrimoniaux.

L’échange d’états financiers est-il toujours obligatoire?

L’échange des états financiers n’est pas obligatoire dans les cas suivants:

  • La demande de divorce ne comporte aucune demande de pension alimentaire et aucune séparation des biens ;

  • Le montant de pension alimentaire pour l’enfant demandé est celui prévu par les Lignes directrices fédérales ou provinciales sur les pensions alimentaires pour enfants ; et

  • Les deux époux ont soumis une motion en modification de la pension alimentaire et sont d’accord de ne pas divulguer leurs états financiers.

En cas de doute, il est toujours mieux de demander le plus des précisions sur les actifs et les dettes d’un époux afin de pouvoir négocier un accord de séparation qui est juste. Néanmoins, il existe certaines situations où la divulgation financière n’est pas importante, voire même inutile.

Les époux ont des biens qui ont peu de valeur

L’obligation de divulguer un état financier permet de rétablir un équilibre économique entre les époux, notamment lorsqu’il y a une disparité considérable entre leurs salaires. Dans les cas où les deux époux ne travaillent pas, leur unique source de revenu provient souvent des programmes d’assistance sociale prévus par le gouvernement provincial.

Puisque cette source de revenu est faible, les époux se retrouvent dans une situation où ils ne peuvent se permettre de se procurer une grande quantité de biens. Par ailleurs, les personnes à revenu faible n’ont habituellement pas les moyens d’acheter une maison ou un autre type d’habitation. Le foyer conjugal est, pour la majorité des ménages, le bien de plus grande valeur. Dans la mesure où le couple n’est pas propriétaire de leur foyer conjugal, que les meubles ont peu de valeur et que le couple n’a pas de véhicule, la nécessité d’obtenir un état financier devient moins importante.

Un des époux possède des biens à l’international

Chaque partie a l’obligation d’affirmer de façon solennelle que toutes ses déclarations dans l’état financiers sont vraies. Pour vérifier la véracité d’une déclaration, un époux peut demander à l’autre époux de joindre des documents supplémentaires pour appuyer la déclaration. Cela dit, il incombe à celui qui demande des renseignements additionnels de vérifier la véracité de l’information donnée.

Si un des époux est propriétaire de biens ou de sommes monétaires situés à l’international, il est très difficile et dispendieux pour l’autre époux de faire les enquêtes nécessaires pour vérifier la véracité de l’état financier. S’il n’est pas possible pour une partie de vérifier l’exactitude des déclarations de la partie adverse, l’état financier est alors inutile.

Les époux ont conclu un accord sur la séparation des biens

Les époux devraient essayer de se mettre d’accord sur le plus de points possibles lorsqu’ils décident de mettre fin à leur mariage. Si les époux sont satisfaits qu’ils ont suffisamment d’information sur l’un l’autre et trouvent qu’il n’est pas nécessaire pour eux d’échanger leurs états financiers pour prendre des décisions financières à propos de la séparation de leurs biens, il est possible pour eux de signer un contrat de séparation sans avoir plus d’information sur la situation économique de leur époux.Les époux peuvent envisager cette option dans les cas où la valeur de leurs biens et de leurs dettes est plus ou moins égale et qu’ils sont certains que la divulgation d’un état financier n’aura aucune incidence sur leurs décisions pour séparer les biens matrimoniaux.

Même si vous pensez avoir obtenu tous les détails financiers de votre ancien époux, assurez-vous toujours d’obtenir des conseils juridiques d’un avocat avant de signer un contrat de séparation ou de finaliser votre divorce pour être certain que vos intérêts économiques sont protégés.

Karen Kernisant est avocate à Aubry Campbell MacLean et pratique le droit partout en Ontario dans les domaines suivants: droit de la famille, droit de l’emploi, contentieux civil, droit de l’immigration et droit criminel.

Top 5 Things NOT to Do If You Learn You're Being Investigated by the Police

I used to believe that only the guilty were investigated by the police. And that police investigations were only launched after a process of careful deliberation. But then I spent the last 23 years first as a Federal Crown Prosecutor, and later as criminal defence counsel. 

I learned that police investigations are sometimes started based on false (or legitimate) complaints by people who don’t like other people, or by mere police hunches that may or may not be justified, or sometimes just by plain chance. In many cases, the police have a duty to investigate complaints, even if they themselves don’t put much weight on the complaints. At other times, the police are trying to target particular behaviour - drug dealing, Internet-based offences - and go out looking for people to target, which means innocents could get caught up in a drag net with the guilty. 

So never make the fatal mistake of thinking that just because in your opinion you’ve done nothing wrong, you should do whatever the police ask of you because that will best terminate their investigation and exonerate you as quickly as possible. In fact, the opposite may be true. Here are my top 5 things NOT to do if you learn you’re being investigated by the police. 

1. Speak to the police before speaking to a lawyer

In my experience, most people just want to be helpful. Yes, there are lots of difficult people in the world, but mostly if you ask for directions, you’ll get an answer, even if it’s the wrong answer. When asked by an authority figure like the police to be helpful, there’s even more pressure. So I’ve found both those I’ve prosecuted and those I’ve defended are keen to spill their guts to the police, hoping that whatever they say will put police questions to an end. 

I’ve got three words for you in response to a request to chat with the police: just say no. Seriously. Now I know saying no is not as easy as it sounds. It’s going to take a lot of will power. You might feel guilty about it. You might get worn down if they keep politiely telling you it will be far better if you help them out, as then they can eliminate you from their investigation. But don’t do it. 

Nothing you ever say to the police is going to help you. Rather, it will later be used against you, even if you deny everything. Trust me, as a prosecutor at trial I always used things people had said to the police years before to contradict what they were saying now at the trial, even if the earlier statements were denials. Save what you’re going to say for a judge, or at least for your own lawyer.  

It doesn’t matter if you think you’re persuasive enough to talk the police into dropping their investigation, and believing all your explanations. The officer you talk to may have very little role in the ultimate charge making decision. She might just be there to take your statement, which will later be picked over by other officers, lawyers, and judges. 

Of course any strict rule like this has exceptions. That’s why you need legal advice. Your lawyer might tell you that answering certain questions could be best. Your lawyer might even be able to get written questions in advance. Your lawyer could come with you to the interview to help you answers the questions. Occasionally for non-criminal matters, you may be under a statutory obligation to provide certain information to the authorities - like for tax or automobile insurance enquiries - but you’re still going to need legal advice on how much information you should be sharing. 

2. Admit to anything

As obvious as this might seem, all sorts of people confess to things they didn’t do because of becoming worn down by questioning, or because of the way leading questions are posed to them. Part of not admitting to anything is not agreeing with anything. And no need to become trapped by yes or no questions. If you’re asked if the grass is green or the sky is blue, there is no need to agree. Likewise, you don’t want to be agreeing with suggestions about times, or activities, or people known, or conversations. Just decline to talk about things. You have no duty to help the police (subject to those few exceptions, where you need legal advice). 

I’ve worked with the police for a long time. I’ve come to appreciate that the vast majority of officers don’t want to elicit a false confession. They just want to get at the truth. But if what you’re telling them doesn’t fit with their preconceived notions, they might keep trying to wear you down into agreeing with what they believe is the truth, rather than what you know to be the truth. 

3. Deny anything

You might think you’re safe denying everything, because you’re complying with the don’t admit to anything rule. But you’re not safe.

If you deny you ever met someone before, or visited a place before, and it turns out you’ve forgotten about one meeting or visit, then you’re later going to have a credibility problem. We all forget things, or are mistaken about things.

So don’t deny. Just don’t say anything. Not even “No comment” since that sounds too much like a denial of the guilty. 

4. Destroy anything or obstruct the investigation

You risk being accused of obstructing justice, even if that isn’t your intent, if you unintentionally destroy material during an investigation that the police believe is relevant evidence, or make statements that have the effect of misdirecting the police. And then, even if you weren’t guilty of anything before, you might be found guilty of something just because of the way you acted during the investigation.

Been planning on cleaning up your computer hard drive for years by deleting a lot of files? Don’t during an investigation, or you might be charged with obstructing justice. Thinking of recyling the contents of all those file cabinets to do your part for the environment? Don’t during an investigation. 

You might even be accused of obstructing by misremembering names and dates when giving a statement to the police, with the accusation being that you were intentionally misleading the police so as to frustrate the investigation. So saying nothing is the only safe thing to do. 

5. Give the police permission to search your house, vehicle or person

Either the police have sufficient grounds and legal authority to search, or they don’t. It’s not your job to make their job either eaiser or harder than it should be. So either they can or can’t search for things, but you don’t need to insert yourself into that equation. 

Maybe they need a warrant to search, maybe they don’t. Not your problem. It will later be your lawyer’s problem.

So if they show up at your door, and ask if you mind if they step in side, don’t agree they can come in. I know this might be difficult to do. That it seems rude. But once inside, they might wander around. The law can be vague on what can happen once the police are inside your house and courts come to inconsistent results when searches are later challenged. But if they show up with a search warrant, or otherwise claim legal authority to enter, then of course don’t stop them from attempting to enter. Just don't give them permission. 

Same with your car. Maybe you’ve transported other people in it lately, and someone else left contraband behind? Think the court will believe you when you say the drugs don’t below to you? That you don’t do drugs? Uh, huh. So no need to tell the police that you don’t mind if they take a quick peek in your trunk, or you glove box. If they have the power to search, they won’t need your permission. 

And last, the same principles apply to your person. If the police arrest you for something, they do have a right to search your clothing, and maybe a bag you are holding. But without an arrest, you don’t need to be turning out pockets, or opening bags. 

You might be saying to yourself, I’ll never need these tips. I’ll never be investigated. And even if I am investigated, I’ll just tell the truth, and everything will turn out fine. But you need to believe me when I say I’ve been involved in hundreds of cases, and written three books on the law of investigations, and perverse things do happen. So protect yourself, and your family, and don’t say, or admit, or deny, or destroy, or agree to anything - at least without first talking to a lawyer. A little bit of lawyer advice is cheap, a criminal defence won’t be such a bargain. 

 

Gordon S. Campbell advises individuals and organizations subject to investigations on their rights and duties, and can provide legal support right from the start of an investigation until its conclusion.

Top 7 Mistakes of Self-Represented Parties in Small Claims Court

If you are involved in a dispute with someone and can’t resolve your dispute amicably, you may have to go before the courts to enforce your rights. In Ontario, the Small Claims Court has jurisdiction to award damages up to $25,000 or order the return of property worth $25,000 or less. A quick and efficient resolution of matters, less formal procedural rules and the possibility of representing one’s self are a few of the many benefits of commencing an action in Small Claims Court rather than before the Superior Court of Justice. If you intend to commence an action in Small Claims Court, below are seven tips to help you navigate through this process.

1) Having no standing

This may seem obvious, but before commencing an action the first question you should ask yourself is: “am I allowed to do this?” It is imperative to find out if you have standing. A party has standing if he or she can demonstrate to the court a sufficient connection to the case and the alleged harm. To put this into context, read the following example.

Alberto and Bernadette are married. Bernadette lent $15,000 to Charlie, a friend of hers, on October 30, 2016. She took those funds out of her personal bank account. Charlie agreed to pay back the loan by the following year. It is now past October 30, 2017. Bernadette has contacted Charlie numerous times to inquire about payment of the loan. Charlie keeps avoiding her calls as he does not have the means to pay her back yet. Alberto and Bernadette decide to sue Charlie in Small Claims Court for the amount owed.

While Bernadette may have a claim against Charlie, the same cannot be said about Alberto. The fact that Alberto and Bernadette are married does not automatically make him a proper plaintiff. Because Bernadette withdrew the funds out of her personal account and because the agreement was specifically between Bernadette and Charlie, Alberto has no connection to this lawsuit. Thus, Alberto has no standing in these proceedings.

Naming the proper is plaintiff is crucial as a defendant may seek and obtain costs against a party who is uselessly named as a plaintiff in an action.

2) Naming the wrong defendant

One of the most common mistakes is to write the wrong name of the parties involved in the lawsuit. If you are suing a corporation, be mindful that it may be operating under a business name rather its actual legal name. You may have to obtain a business name report to get the corporation’s full legal name. If you fail to name the correct business in your pleadings, you may be commencing an action against a corporation that has nothing to do with your dispute. This may result in your action being dismissed right off the bat.

Also, keep in mind that a corporation is a separate person than its directors and officers for the purposes of an action. In certain cases, if directors or officers act outside the scope of their duties, they may be personally liable for your loss. In that case, you should put both their names and the name of the corporation in your claim. However, keep in mind the first mistake discussed in this article: do not add directors and officers as defendants for no reason.

3) Not keeping track of dates and deadlines

If you are thinking of suing, don’t procrastinate to deal with your matter – otherwise, it may be too late for you to do anything. In Ontario, under the Limitations Act, 2002, the general deadline to commence an action against someone is two years from the date of the wrongdoing. Take the above-noted example for instance. If Bernadette had lent money to Charlie on October 30, 2015 and had waited until after October 30, 2017 to sue Charlie, Bernadette’s action would unfortunately be statute-barred.

If you are being sued, you also need to keep track of steps in the legal proceedings. As a defendant, you have twenty calendar days from the day you were served with pleadings to provide a copy of your defence to the plaintiff and file it with the court. If the twentieth day falls on the week-end or any statutory holiday, the last due date to serve and file your defence is the next business day. Failing to file your pleadings on time may result in you being noted in default. This means that you can no longer file a defence and are no longer entitled to receive a copy of any other pleading in the suit. As such, the plaintiff could seek a judgment against you for the full claim without notifying you.

4) Not having any relevant evidence

Evidence is the cornerstone of any lawsuit – no evidence, no case: it’s that simple. As the plaintiff, it is incumbent upon you to provide the court with all the information necessary to support your claim. Written agreements, e-mails, text messages, receipts, photographs and videos are generally a good place to start when gathering information to support your allegations.

When putting together evidence, remember quality trumps quantity. Coming into a courtroom with a stack of papers may intimidate the other party; however, the information you have compiled may not prove anything. When looking at a piece of evidence, ask yourself the following questions: • How is this relevant to my case?

• Is this piece of information reliable?

• Is my source of information objective?

• How is this information supporting my position on this case?

If you are defending an action, while the burden of proof does not fall on your shoulders, you should always prepare to rebut the plaintiff’s arguments. As such, take the time to gather evidence of your own and ask yourself the questions outlined above.

5) Refusing to settle

It is often said that there are three sides to every story: the plaintiff’s version of the events, the defendant’s version of the events and finally, whatever the judge decides! While our legislatures have enacted a plethora of statutes, regulations and by-laws to ensure fairness and equality in the legal system, at times, judgments may seem unfair. Therefore, even in the face of what appears to be a “winner case”, it is never a bad idea to try and resolve the dispute before trial. Parties involved in legal proceedings tend to get caught up in the idea of going to trial. Quite often, lawyers hear: “it’s not about the money, it’s a matter of principle!”

Let’s be honest, if you are in court and your goal is something other than to dispute money or property, you are wasting your time (and money for that matter). Rather than relying on a judge to make a decision on your case, take matters into your own hands and come to a resolution with the other party to get some sense of finality of the dispute even if it means cutting way back on your expectations. This will allow you to move on to better things.

6) Expecting the wrong remedy

Remedies other than money or the return of property are not available in Small Claims Court. The maximum amount of damages the plaintiff will be awarded is $25,000 for a single claim. The plaintiff can also request that any agreed upon interest be applied to the damages claimed or have the interest rate stipulated in the Courts of Justice Act (generally around two percent) apply.

Orders that cannot be awarded to you if you are suing in Small Claims Court include:

• Taking down a negative review from a website;

• Releasing confidential documents;

• Freezing assets;

• Moving a fence; and

• Not playing loud music at night.

7) Not getting independent legal advice

One of the benefits of commencing an action in Small Claims Court is the ability to be self-represented. This can be a good option for those with modest means or for claims where the amount in dispute is minor. Regardless of the amount of the claim and the complexity of the matter, it is always a good idea to obtain legal advice from a lawyer to determine your rights and obligations. You should also consult a lawyer to get a better understanding of the Small Claims Court process and ensure you are doing everything necessary to protect your interests. If there’s anything you should be doing, it’s just that.

Karen Kernisant is a lawyer at Aubry Campbell MacLean and practices in the areas of civil litigation, family, employment and immigration law. For more information, please visit our website: acmlawfirm.ca.

WHAT EMPLOYERS AND EMPLOYEES NEED TO KNOW REGARDING OVERTIME PAY

In Ontario, under the Ontario Employment Standards Act, 2000 an employee is entitled to receive one and a half time their hourly wage for every additional hour he or she works over a regular forty-four hour work week. Employers and employees should be mindful of their rights and obligations when it comes to overtime pay.

Which employees are entitled to overtime pay?

Not all employees can claim overtime pay even if they work more than 44 hours in a single week. Generally, overtime pay is reserved for part-time and full-time employees who do not fall under the following positions:

• managers and supervisors;

• superintendents providing services in the building where they live; and

• duly qualified or registered professionals1 .

Where there is doubt about a person’s status as an employee, it should be noted that courts are not bound by that employee’s title. Rather, courts focus on the employee’s actual daily tasks to determine whether or not a statutory exclusion applies.

Do overtime hours need to be approved?

Many sources of conflicts between employers and employees come from a lack of information and awareness with regards to overtime pay. Policies should be developed by management and made accessible to employees to inform them about procedures for overtime hours to be approved and paid. While these policies are not fully determinative in establishing the right to receive overtime pay, they may help in protecting both the employers and employees’ interests.

Pre-emptive steps to protect both employers and employees’ interests Where there are no policies in place, employees can take the following steps when working overtime hours:

• ask their supervisor to work additional hours;

• keep copies of receipts for services provided;

• document work performed;

• save e-mails sent to third parties;

• take notes of phones calls made or received; and

• docket all hours in software used by employers.

Employers can manage an employee’s overtime pay by:

• having employees sign written agreements detailing the circumstances in which they can request overtime pay, including receiving prior written authorization by the employee’s supervisor;

• requesting that the employees track their hours in a software set up by the employer; and

• limiting the amount of work given to employees after work hours.

If you are an employee and aren’t sure if you are owed overtime pay, it can be helpful to consult a lawyer to know your rights under the Employment Standards Act, 2000 and applicable by-laws. Employers should also seek independent legal advice to avoid any potential liability for failing to pay employees who worked more than forty-four hours in a week.

1 These professions include but are not limited to: architects, engineers, lawyers, accountants, surveyors, veterinarians, chiropractors, dentists, message therapists, physicians, pharmacists and psychologists.

Karen Kernisant is a lawyer at Aubry Campbell MacLean and practices in the areas of employment and family law as well as civil litigation. For more information, please visit our website: www.acmlawfirm.ca.

UNE SOIRÉE DE PLAISIR, UNE VIE DE RESPONSABILITÉS : LES CONSÉQUENCES JURIDIQUES DE LA FRAUDE SEXUELLE SUR L’OBLIGATION DE PAYER UNE PENSION ALIMENTAIRE

Travail, école, épicerie, ménage, cuisine et j’en passe : chacun a de quoi se sentir débordé par ses occupations quotidiennes. Il n’est donc pas étonnant que chacun cherche à se détendre pour oublier ses soucis, même si ce n’est que pour une nuit.

Après une longue semaine de travail, Alex1 s’est rendu à son bar préféré. Arrivé là-bas, il a fait la rencontre de Sara. Après avoir consommé quelques verres, Alex et Sara ont quitté le bar et ont terminé leur soirée dans un endroit plus intime. Alex et Sara ont continué à se fréquenter pendant quelques semaines jusqu’au jour où Sara a annoncé à Alex qu’elle était enceinte. Pourtant Sara avait insisté qu’elle ne souhaitait pas avoir d’enfant et que, de toute façon, elle prenait la pilule contraceptive tous les jours. Alex, n’étant pas prêt à être père, s’est senti désemparé et trahi.

Quelles sont les obligations alimentaires des parents?

Le droit à la pension alimentaire est un droit qui appartient à l’enfant. Les circonstances dans lesquelles un enfant naît n’a aucune incidence sur le droit de recevoir des aliments. Dans la mesure où les moyens de contraception s’avèrent inefficaces, ils n’éteignent pas l’obligation du parent de pourvoir à son enfant par voie de pension alimentaire. Cette obligation existe même si un des deux partenaires ment intentionnellement à l’autre relativement à son utilisation de moyens de contraception, le désir d’avoir un enfant ou la possibilité de féconder.

Quel est l’impact des obligations alimentaires sur les parents?

L’obligation de payer une pension alimentaire à l’enfant peut être perçu par certains parents comme un fardeau, notamment lorsque l’enfant est le résultat d’une grossesse non désirée. Cela dit, l’impact de la naissance de l’enfant sur le style de vie, la carrière et le revenu du payeur n’ont aucune incidence sur le montant à payer.

Comment calcule-t-on le montant de la pension alimentaire à payer?

Le montant de la pension alimentaire à payer varie en fonction de plusieurs éléments :

  • le nombre d’enfants
  • l’âge de l’enfant
  • le revenu des parents

En plus du montant de base de pension alimentaire, les parents ont l’obligation de contribuer aux dépenses suivantes :

  • les frais de garderie
  • les dépenses médicales et dentaires
  • les frais associés à l’éducation de l’enfant
  • le coût des activités parascolaires

L’importance de connaître ses droits et ses devoirs

Le devoir de payer une pension alimentaire juste et équitable En cas de doute, il peut être prudent de consulter un avocat pour connaître ses droits et ses devoirs relativement à l’obligation de payer une pension alimentaire à son enfant. Enfin, pour ceux et celles qui ne sont pas prêt à être parent, choisissez vos loisirs judicieusement.

Karen Kernisant est avocate à Aubry Campbell MacLean et pratique dans le domaine du droit de la famille, du droit de l’emploi et du contentieux civil. Pour de plus amples renseignements, prière de consulter le site Web suivant: www.acmlawfirm.ca.

1 Tous les noms ont été modifiés pour protéger l'identité des parties.

Top 3 Reasons You Should Appeal that Court Case You Lost. And Top 3 Reasons You Shouldn't Appeal.

So much time, money and especially emotional energy go into any kind of court case, that it's natural to have a sense of injustice, being wronged, and wanting to prove the injustice to a higher authority when you lose. Civil business litigation, family cases, criminal trials, small claims, they all have winners and losers.

Most judgments can be appealed up to at least one higher court. Sometimes you've got two or even three levels of appeal available. But should you?

Top 3 Reasons You Should Appeal

1. There was a Very Clear Error of Law in the Trial Judgment

All judges and hearing officers are human. And humans make mistakes. If judges were perfect, there would be no need for an appeal infrastructure as a safety valve for decision makers having an off day. 

Starting out my legal career, I used to imagine that you had to get very, very creative to dream up viable grounds of appeal, because most trial judgments would be solidly reasoned. I couldn't have been more wrong.

Sometimes the facts and law really are against a party, but the decision maker fails to adequately explain how she got to her decision. At other times, the decision fundamentally miscomprehends the law or facts, so that you’re effectively into miscarriage of justice territory. You don’t need to be an unjustly imprisoned lifer to have a miscarriage of justice. 

How often such errors are made is a matter of conjecture, since practically speaking many people won’t bother appealing after a long trial process has taken its toll. But I can tell you from statistics from the Court of Appeal for Ontario and the Tax Court of Canada that approximately one in four civil appeals succeeds in some way, and about one in three criminal appeals finds some success. Those really aren’t bad odds if a lot is at stake, and can probably be improved upon with an experienced appellate lawyer since a significant number of appeals are advanced by the self-represented. 

2. An Appeal is Way Cheaper than Paying the Judgment

Its unfortunate that in our society a lot of things come down to money, but that's just the way it is. The reality is that an appeal that will cost you $25,000 in fees against a $3 million judgment is far more justifiable than an appeal that will cost you that same $25,000 in fees as compared to a $40,000 judgment against you.

I have found that litigants often fall into the age old trap of "throwing good money after bad." That's because they've spent a lot of money on trial litigation, perhaps fighting over something that wasn't worth all that money to start with, and then feel compelled to keep spending money on a lost cause on appeal that still isn't really worth it. 

The appeals being justified because they cost a fraction of judgment costs theory also applies to court costs awarded at trial. Even if you perhaps should have lost, but then have $200,000 of the other party's legal fees awarded against you on top of that, you might need to appeal just to fight the costs award. Sometimes by merely filing the appeal, you may gain enough leverage to negotiate a much lower level of costs with the opposing party, or even to have them abandon the costs in exchange for you not further fighting the judgment. 

Once I went before the Ontario Court of Appeal to overturn an unjustified family court contempt finding that should have never been made against my client. When I was contemplating taking on the case, I initially wondered whether it was worth it for my client (and me) to go to the highest court in Ontario to fight what was somewhat of a symbolic order (because it's very rare for anyone to go to jail over a contempt finding). But when I learned there had also been a $20,000 costs award against my client out of the contempt motion, I became convinced of the merits of the appeal. We wound up successfully overturning the contempt judgment, and wiping out the costs award, thereby mostly paying for the cost of the appeal. 

3. Your Were Fighting for Something Priceless at Trial

Of course there are some trial issues that aren't quantifiable in monetary terms. Issues that if you lose, are worth a continued fight, regardless of the cost. Your freedom and your children may be the two most obvious categories. 

However, courts hate frivolous appeals. You need an arguable case. An experienced appeals lawyer may be able to come up with at least arguable grounds for you, even if winning that argument is an uphill battle. You absolutely can't base an appeal solely on not liking the trial level court or tribunal result. 

And an appeal isn't a new trial. It's tough to introduce fresh evidence at an appeal - you'll usually need to bring a motion. An appeal isn't just another kick at the can.

So if you're truly fighting over something priceless, you're better off investing resources at trial than on appeal. I'm often approached by litigants who were self-represented at trial, got hammered (perhaps quite unjustly), and now are thinking of hiring me to "fix" the situation. Sometimes I'm able to do that, but you'll never have as good of a shot at winning on an appeal as you did at trial. Often the best result from an appeal is another trial 

Top 3 Reasons You Shouldn't Appeal

1. Finality

There may be a certain emotional peace to a case finally being over, even if you lost. Appealing will just drag things outs. 

2. The Trial Result Really Wasn't That Bad

While you might be outraged about a trial result, on further examination sometimes it really isn't all that bad. It may be a criminal trial where you were convicted, but you weren't sentenced to jail. It could be a family trial where you didn't secure sole custody of your children, but you also didn't lose custody, and will wind up with them 60% of the time, plus you did get spousal support in your favour. Or perhaps it was business litigation where you and your former business partner were suing each other, and the court found that neither of you had proved your claims. 

You'll have to carefully assess how "bad" is a bad that you can't live with coming out of a trial court; that will be a very personal assessment. For instance, for one person who has a high level security clearance, the criminal conviction without jail might lead to a permanent loss of employment and career, whereas for another who is self-employed it might just not really matter much.

You must especially guard against your appeal against a judgment involving partial success triggering a cross-appeal by your opponent, thereby potentially challenging even that partial success. 

3. You Can't Really Afford It

The cost of an appeal is not just in the appeal, but also in paying the fees involved in a court process that might continue after the appeal. If you win the appeal, your opponent could seek to appeal the appeal. If you win the appeal, the case might be sent back for a new trial leading to further expense. Losing the appeal may mean paying the other side's legal costs. 

Often the best strategy for figuring out whether you should or shouldn't appeal may even be to make that determination on a preliminary basis early on in the trial phase of your case. Then you won't be rushed in later making a final decision on an appeal. Yes, you'll have to assess the judgment you received, but at least the appeal pros and cons will already have been considered. 

Electronic Travel Authorization (eTA) Confidential: An Immigration Lawyer Tells You What You Need to Know to Not Be Refused Entry to Canada

Shocked you’ve suddenly got to fill out something called an Electronic Travel Authorization (eTA) in order to come to Canada by air, even though you’ve entered many times before Visa-free? Not sure how to answer the eTA questions? Refused entry to Canada because of an eTA, even though you've been welcomed many times before? You’re not alone.

What is an Electronic Travel Authorization (eTA)?

It’s been less than a year since the Government of Canada in November 2016 imposed the eTA requirement on nationals of all Visa-free entry countries (over 50 states), other than Americans. Although the Government seems to have promoted eTAs as not a big deal, in many ways these are mini-Visas, with all the attendant risks, hassles and delays that Visas entail. Supposedly 3.5 million people a year will be applying for eTAs. Previously, only a tiny fraction of those were asked the eTA's probing questions after arriving at a Canadian air port of entry. 

Canada Border Services Agency Officers have the right to ask foreigners seeking entry to Canada all manner of probing questions, but airports are busy places, and most people never were asked questions about things like prior arrests. Now, all foreigners (other than Americans) get asked through the eTA.

While you don’t need to apply for an eTA if arriving in Canada by land or sea, how many people actually do that other than Americans? Canada is not an easy place to get to unless you fly. 

What's the Difference Between a Visa & an eTA?

The main difference between an eTA and a Visa, other than cost and waiting period, is that the eTA is a self-reporting tool that is computer screened. Only if an applicant answers YES to particular questions, or is otherwise flagged in an electronic database, will the eTA application be escalated to human review. By comparison, all Visas supposedly get some human attention (some more than others). 

What's Risks Do eTAs Pose for Travellers?

While the Government of Canada rightly points to the fact that eTAs are only screening for the admission criteria that always applied to any foreigner seeking entry to Canada and which were already tested for in Visa applicants, detailed screening of another 3.5 million people a year is sure to result in thousands of additional refused entries to Canada.

While the government touts the huge numbers of eTAs successfully issued, what is not focussed on is the number of people refused entry because of an eTA. The most common reason for refusal is likely because of disclosure of minor criminal records that the Government of Canada would not otherwise have known about were it not for the eTA questioning. But refusal for health reasons, for being unable to financially support yourself while in Canada, or for being unlikely to leave Canada all also pose refusal risks.

How Should I Answer the eTA Questions?

If you only had to fill out your name, birthdate, address and purpose of visit, the eTA would be easy. But instead, you’re faced with questions like “Do you have a serious health condition for which you are receiving regular medical treatment?”

ou might be wondering, what qualifies as “serious” and what is meant by “regular” or even “treatment"? Good question! There are a lot of important nuances in that one question alone. You don't want to minimize a condition, and then be accused of lying. But you don’t want to unjustifiably exaggerate a condition, and then be refused entry when in fact your condition wasn’t all that serious, and your treatment wasn’t particularly regular. 

In future blog posts, I’ll deconstruct the ways to approach each questions. 

The Government of Canada has produced a 22 page guide on how to fill out the ETA: 

http://www.cic.gc.ca/english/pdf/eta/english.pdf

While the guide is helpful, in some ways it raises more questions than it answers, like in response to the medical question it states: "Select YES if you are receiving regular, ongoing medical treatment for any mental or physical condition.”

But note that the guide's "clarification" isn’t using the same question that was asked in the eTA. The word “serious” has disappeared. The word “ongoing” has appeared.” And mental as well as physical conditions have now been added, leaving one to wonder does taking a low dose anti-depressant need to be disclosed? To me, it certainly doesn’t qualify as “serious health condition” and “regular medical treatment,” but it might qualify as ongoing treatment for a mental condition, especially if some psychotherapy in thrown in. My take would be to follow the wording of the actual question, and not the wording of the guide. But you can hopefully see how confusing this can get, and how easily it might lead to misunderstandings leading to entry to Canada problems.

Three Guiding Principles for Filling out eTAs

For now, I offer you three guiding principles for completing an eTA:

  1. Don’t Lie - a "misrepresentation" can bar you from visiting, working or studying in Canada. The misrepresentation may be considered to be far more serious by the Government of Canada than the thing you were trying to hide. Even if you think the government will never find out, you can't be sure about what database access the government might have. I worked for the government for years, and I was never sure. You can be sure that eTA applicants home countries will share more data with Canada than will Visa-required countries, because the eTA countries tend to be close allies of Canada.
  2. Don’t Answer Yes Without First Obtaining Legal Advice - these are all loaded, legal questions. If you're asked one of them in person at an airport, you aren't going to be able to have the opportunity to obtain legal advice. But with an eTA, you can talk to a lawyer. A lawyer local to where you live won't be much good to you, because it's unlikely he or she will be qualified to give advice on Canadian law. 
  3. Don’t Book Travel Prior to Obtaining an eTA - they’re good for five years, and only cost 7 dollars. So this should be the first step of your trip planning. 

We offer “eTA Quick Legal Consults” (eTA QLC) for those faced with filling out an eTA, and who have concerns about how questions should be answered based upon their personal facts. And on how to resolve eTA refusals. 

The Government of Canada hasn’t changed any of the entry rules to Canada. Reasons for refusal remain the same as they have been. But with eTAs they’ll now have a lot more information on everyone, so you need to treat the eTA document as seriously as you would a Visa application to another country or a passport application in your own country. 

 

 

Claiming Birthright Canadian Citizenship: Top 3 Application Errors to Avoid

It might not be all that surprising in the current climate, but my law firm continues to see a surge of applicants seeking to confirm their own or their children's Canadian citizenship. Confirmation of citizenship is quite different from applying to become a citizen. For those seeking confirmation they're already all citizens, but have never previously had a reason to seek out official confirmation from the Government of Canada that they have a right to work, study and live in Canada on an unlimited basis, including carrying a Canadian passport and voting in Canadian elections if they've reached the age of 18.

A lot of the people who retain us to help them with Canadian citizenship confirmation have already tried to apply for confirmation, but the government returned their applications unapproved because of failure to fulfill the requirements. Sometimes those applications have been returned multiple times, leading to many months - perhaps even years - of frustration.

Yes, there's a DIY guide to citizenship confirmation. And yes, you can do it yourself. But if speed, an error free application, and lack of frustration is important to you, you should give serious consideration to using a citizenship lawyer. The cost is pretty reasonable as compared to some other legal services, and is less expensive even than many other immigration law services.

The top three citizenship confirmation errors we've lately seen in our practice relate to birth certificates, translation of documents, and photographs. All seem deceptively simple things to provide to the government. And yet, the government finds fault again and again with what is submitted because the government won't hold your hand, won't coach you through the standards, and applies a standard of perfection. 

1. BIRTH CERTIFICATE ERRORS

a. Not understanding what is a certified copy

A certified copy isn't just a photocopy. And you can't take a copy into someone qualified to make certified copies without also bringing along the original, so that person can compare the original to the copy. That's what certified means: someone trustworthy has seen the original, carefully compared it to the copy, and then stamped and written on the copy, in the customary manner applicable in the territory the certification is being made in, that the copy is "true" to the original.

In Canada, notaries, commissioners of oaths and lawyers can usually create certified copies wherever your live. There may also be other officials like bank managers or school principals who are authorized to do so.

Overseas you should probably stick with a notary who can create a "Notarial Copy" which is generally even better than a certified copy.

Family members can't certify other family members' copies.

b. Attempting to use documents issued in Quebec prior to 1994

In Quebec, you might need to apply for a new birth certificate prior to applying for citizenship confirmation, even if you've already got a birth certificate or baptismal certificate. The Federal Government doesn't like those Quebec documents if they were issued prior to 1994.

Who knows why. I did two law degrees in Quebec, and I don't know why, though I suppose I could find out. You've just got to accept that that's the way it is, and apply for a more recent document. 

2. TRANSLATION ERRORS

In Canada we all know there are only two official languages: English and French. Other than those pesky documents from Quebec mentioned above, the Government of Canada does not have any firm rules on document standards from a country which has produced the documents you might be submitting, but it does require that they be in English or French, otherwise the Canadian government worker processing them won't be able to read them. The government won't translate your documents for you, you've got to pay to do it yourself.

The documents can be translated either in Canada or overseas. Probably in Canada is easiest, since then it's easier to prove you've used a certified translator; make sure you submit that proof. If done by someone who isn't certified in Canada, you'll need to submit a separate affidavit from that person attesting to not only the accuracy of the translation, but also the fluent proficiency of the translator in both the language being translated from and the language being translated to.

The government will NOT take your word on the accuracy of translations without an official translation.

3. PHOTOGRAPH ERRORS

You'd think photos would be the easiest thing of all to provide. We've all now got camera phones that take great pictures. I often try to justify my overpriced new phone to myself by thinking that I actually bought a really great camera, with a phone thrown in for free. But the Government of Canada has yet to enter the digital photo age.

When I went to get my United Kingdom passport (I'm a dual citizenship), they were more than happy to accept the $3 mall photo booth strip of photos I had procured. Not so with Canada. Mess up the photos, and your application will get returned, sometimes with little explanation as to what went wrong.

Photos have a mere 15 requirements to qualify as acceptable (as quoted from the IRCC website):

  • Photographs must be printed on quality photographic paper.
  • Provide the name of the photographer or the studio, the studio address and the date the photos were taken on the back of the photos
  • Print the name of the person on the back of the photos.
  • The photographs must be identical and taken within the last six months. They may be either black and white or colour.
  • The photographs must be clear, well defined and taken against a plain white or light-coloured background.
  • If the photographs are digital, they must not be altered in any way.
  • Your face must be square to the camera with a neutral expression, neither frowning nor smiling, and with your mouth closed.
  • You may wear non-tinted prescription glasses as long as your eyes are clearly visible. Make sure that the frame does not cover any part of your eyes. Sunglasses are not acceptable.
  • A hairpiece or other cosmetic accessory is acceptable if it does not disguise your normal appearance.
  • If you must wear a head covering for religious reasons, make sure your full facial features are not obscured.
  • The frame size must be 50 mm x 70 mm (2″ x 2 ¾″).
  • The photographs must show the full front view of the head, with the face in the middle of the photograph, and include the top of the shoulders.
  • The size of the head, from chin to crown, must be between 31 mm (1 1/4″) and 36 mm (1 7/16″).
  • Crown means the top of the head or (if obscured by hair or a head covering) where the top of the head or skull would be if it could be seen.
  • If the photographs do not meet the specifications, you will have to provide new photographs before your application can be processed.

Don't staple the photo to the application - a paperclip is the most severe form of attachment tolerated.

So to avoid errors, especially as to size, just go to a passport photo place. Drug stores often do this. For about $10 or $15 dollars, you'll get your two photos. The Government of Canada is really picky about its photos.

Succeeding in your citizenship confirmation application involves not just adhering to the letter of the law, or the letter of government policy, but also the letter of the minute application instructions. Misinterpret those instructions, and you'll be receiving a return to sender envelope from Immigration, Refugees and Citizenship Canada. 

Bucket List of Top 5 Legal Things You Should Do Before You Die

I like those bucket list books as much as anyone. 100 places to see before you die. 100 foods to try before you die. 100 adventures to have before you die. 

We might like the lists as much for proving to ourselves we've actually done a few (maybe very few) of those things, as we do for their giving us new ideas of places, food and things to do! 

I've never heard of a bucket list of legal things to do before you die. So I'm giving you my top five legal things you should do before you die list. And unlike those other lists, for these you really do need to get through all of them - even if it takes you a few years. It's never too late. 

1. Make a Will

Even if you don't think you've got much in the way of property or dependants, no one knows better how things should be taken care of after you pass than you do. Everyone needs a will. And I do mean everyone. 

2. Make a Continuing Power of Attorney for Property

With people living longer and longer, there's an ever increasing risk that you might become mentally incapable long before you die. You need someone other than the government who is empowered to look after your property, including being able to use your assets to pay for your care.

3. Make a Power of Attorney for Personal Care

You know best what kinds of medical decisions you would like to be made about your life, and a power of attorney for personal care in Ontario (sometimes called by other names elsewhere) is the only way to pass on those wishes if you're incapacitated.

4. Update Your Life Insurance Beneficiaries

Contrary to what many people think, life insurance does not pass through a will if you've named particular beneficiaries in an insurance policy. If you're younger, life insurance might be your greatest asset, but your personal circumstances could have changed from the time you originally named beneficiaries. Make sure the person(s) you wish to receive your insurance payout really are the ones named in the policy. 

5. Ensure Someone Knows Where all Your Legal Documents Are  

While a few smart places (like Quebec) have government registries for wills, most (like Ontario) don't. So it won't matter how many of these things you've crossed off your bucket list if no one can find the documents you've created!

Ideally, you'll leave them with the lawyer who drafted them. But lawyers get old just like everyone else, and the documents could be difficult to track down. So make sure someone you trust - preferably your executor - knows where to find the documents, and absolutely don't leave them in a safety deposit box because no one may be able to access it without possession of the documents that you've locked in the box. 

Top 5 Things Never to Do in a Property Dispute

I’ve devoted much of my legal career to attempting to demystify the law for people. To convince them that lawyers don’t hold all the secrets to the black letter law arts, and that everyone can read and interpret the law - though getting a lawyer’s advice is always helpful. 

But there are unfortunately some areas of law that are a lot more impenetrable than others, usually because of two factors:

  1. the amount of time the area of law has been in existence;
  2. a lack of legislative codification.

Meaning 500 years of cumulative law is a lot more difficult to figure out than 50 years of law, and a well organized 500 pages of law that has been recently refined by the legislature is much easier to deal with than 50 separate statutes passed over the last 100 years

Real property law unfortunately falls into the just really complicated category of law that’s been around a very long time, and is spread over an awful lot of statutes. It’s especially too bad for it to be so complicated, as a very large number of Canadians will have reason to be involved with it over the course of their lifetimes in buying or selling property, as compared to other more niche areas of the law which might be easier to figure out, but where few people will ever need to understand them.

I find disputes over real property all too common, and they tend to take on a nasty tinge that only neighbours who aren’t related to each other, but are still stuck coexisting side by side, seem to be able to develop for each other. Perhaps it's the helpless feeling of being stuck next to someone, and perhaps even seeing them every day, but not being able to interact with them to resolve the issues involved.

Some of these disputes can be resolved without going to court, though I find some lawyer involvement is usually necessary to figure out what each party's rights truly are. Occasionally only a court can sort out who has which real property right, and what's the appropriate remedy to enforce those rights. 

Here are my top five things to never do in a property dispute. 

1. Lack evidence

In almost any legal dispute, the burden of proof is on the party making the argument for the remedy. So if you think you have a right to cross your neighbour’s backyard in order to get to your garage because all owners of your property for the past 40 years continuously have been doing just that, you better be sure of your evidence. Knowing you’re right, and being able to prove it, are not the same thing. 

2. Fail to get a survey

It's easy to think you know where the boundaries of your land are. But do you really?

Just because you think the property line is where the fence is, if you don’t have a recent survey prepared by a licensed surveyor, you need to get one done. Surveys are endlessly useful, not just in establishing boundaries, but also for determining where easements sit, how far an encroachment cuts into your property, or just generally as an aid to later selling your house because buyers can have confidence in knowing exactly what they are buying.

3. Fail to get a title search

It's also easy to think that you have absolute ownership over your property, but in fact none of us does other than the Crown. At best, we own “fee simple” which still means Crown title underlies our land (thus making things like expropriation possible). And sometimes there could be all sorts of other rights or charges registered on our land that we don’t know about. 

Only an up to date and probing title search, carried back sufficiently in time (rather than just looking at the last transaction) will truly tell you about the rights hovering over (and under) your property. 

4. Fail to make a title insurance claim

Title insurance is increasingly common, and could pay all your legal fees or damages if you wind up with a previously unknown title problem to your land after you’ve closed a purchase for which you bought residential or commercial title insurance at the same time.

There's a lot of paper produced at the time you buy real property, so it's understandable you might not have poked into that thick reporting package envelope your real estate lawyer sent you all those months or years ago. But go take a look. 

You might discover a few pages mentioning that you did indeed agree to buy a policy from one of the major providers like First Canadian Title or Stewart Title. There's no guarantee (like any insurance policy) that they'll cover your loss, but there is no downside to making a claim. 

My personal experience is that sometimes you'll get coverage, and sometimes you won't, with the results really depending on your factual situation as compared to the wording of your policy. It's often helpful to retain a lawyer to assist you in making a claim because of the complexity of property law, but it's not required. 

5. Fail to get legal advice prior to acting

A couple of hours of legal advice from a lawyer is a bargain compared with the dozens or even hundreds of hours that can be burned through in a court case if you proceed to do something on your land that it later turns out you had no right to do, like block a laneway, cut down trees, or erect a fence. 

I offer you this suggestion not out of self-interest - I make more off court cases than I do legal opinions - but rather because of the unfortunate real property difficulties I see people get themselves into time and time again, that can be very costly to dig out of, and that are completely avoidable with a little advice.

The Top Reason to Never Do Your Own Separation Agreement or Divorce & It's Not Because Lawyers Need All Your Money

The vast majority of family separations and divorces are settled out of court. Only about 1% of family cases in Canada actually get to trial. But building a solid family law settlement is somewhat analogous to building a sound house: you've got to start with a good foundation, and while you might be able to do a bit of wiring and plumbing yourself, foundations are best left to the professionals. 

DIY agreements live in the moment

Many of the family law cases I assist clients with in court as a barrister started years before I got involved. Couples with good intentions, full of emotions surrounding a separation, worked out agreements that seemed reasonable at the time, and committed them to paper. 

Usually those agreements took up only one or two pages for the couples to draft the key points that were important to them at the time. Sometimes they validated the agreements through obtaining consent court orders, and were reassured that because there was a court seal on their agreements, they must be legal and binding for all time. Sadly, they couldn’t be more wrong. 

If there’s something to potentially fight over you need a lawyer

If separating couples have no children, truly no assets, and very modest incomes, they may not need a lawyer because there really isn’t anything to fight over. Everyone else needs legal advice, and a lawyer to draft their separation agreement. Trust me on this. I’m a lawyer. Would I lie to you?

After the separation agreement is done, you might be able to do your own divorce (though the additional the cost of doing a divorce at the same time as the separation agreement is negligible). But it’s the separation agreement that’s the foundation for the post-marital house the former spouses will both be stuck inhabiting for a long time to come.

And the top reason is ...

The top reason to never do your own separation or divorce is because your mutual no-lawyers agreement won’t resist future discord between you and your former spouse. It won’t be resilient. And it won’t stand up in court. 

So long as you and your former spouse will get on well for decades to come, the DIY agreement may be just fine. But if you got on really well as a couple, you probably would not have split up to start with. Thus just as with marital relationships, post-marital relationships (including post-common law relationships) will have their ups and downs. I know I’m stating the obvious, and I’m not a psychologist, but my goal is to explain what I observe on a daily basis as part of my practice to be the adverse legal consequences of those ups and downs. 

When you’ve got an up, both parties might honour a DIY agreement, though its lack of detail may cause tensions because children’s holidays, or expenses, or division of family property really weren’t sorted out in sufficient detail after all. When there’s a down, the entire agreement may be repudiated, with one of the ex-spouses now claiming retroactive child support, retroactive spousal support, and a redivision of the family property right back to the time of separation. And they might win.

Beware current online separation agreement tools

As Canada’s former Director of E-Business Development, I love technology. I believe it to be the future of legal practice, and the best hope for improving lawyer-client engagement and court efficiency. But current online technology is decades away from being a substitute for sound legal advice from a licensed lawyer. 

There are now some amazing online family law tools available, most notably www.maysupportcalculator.ca/calculator which is great for figuring out likely amounts of child and spousal support; it’s a giveaway from the software creators of DivorceMate that all lawyers use. But online fill in the blanks separation agreements just won't cut it until artificial intelligence advances greatly.

If you wouldn’t dream of taking out your own appendix, then you shouldn't be trying to do your own separation agreement. DIY for either has huge risks of future complications, even if you survive the initial process. 

5 Things to Never Do if You Want to Avoid Family Feuds Over Your Estate

In the "good old days" (which often weren't so good), most of us died relatively poor, and there wasn't a whole lot left to divvy up among those who survived us. With recent significant increases in home ownership equity, if you die owning a mortgage-free house you now often die rich. Plus there may be life insurance and investments to distribute. This is all great for one's survivors, but not so great if family relationships are already a little strained at the time of your passing. 

In the old days, even if beneficiaries of estates were inclined to squabble over who got what, they did not often retain legal counsel since the legal fees would outweigh the money in dispute. But now "lawyering up" prior to estate distribution is becoming much more common. 

In my estate litigation practice, I consistently find the disputes far nastier and more intractable than the conflicts in my family law practice. 

Here I offer you five things to never do if you want to avoid family feuds over your estate.

1. Have No Will or a Very Outdated Will

It continues to amaze me how many smart, hard working people - including even lawyers I know - have no wills! Or they last updated their wills 40 years ago when they had far fewer assets, and their family members were far less numerous. It's got me thinking about what an unpleasant thought mortality is for many of us. 

The default operation of the law is a very poor guide as to where your estate should go, and for who should be appointed to administer it. Wills are quick and relatively inexpensive to have professionally prepared, and a carefully drafted will minimizes later family beneficiary conflict - you need one. 

2. Appoint Several Simultaneously Acting Executors

Picking the right executor for your will may be more important than picking the right beneficiaries. People often spend months debating who should or should not receive that prized china tea cup in a will, but take about five minutes (literally) to determine who should act as executor and estate trustee in a very onerous and complex role. 

Your executor is THE key player who will determine whether your estate is distributed hassle free, or with acrimony and litigation lawyer involvement. While many think that appointing several people to simultaneously act as executor will permit spitting the workload and ensure all those important to them have the “honour" of being executor, the reality is that being executor is a thankless job where nothing may get done if it proceeds by committee. 

Picking someone (and only one person) who is relatively impartial (and ideally not a major beneficiary, but who is compensated for his or her effort), has some financial abilities, and has people skills, is the usually the best strategy. 

3. Appoint No Alternate Executors

No where else in the legal world do we draft binding documents that only take effect many decades in the future, when factual realities may have changed dramatically. Thus planning for changing contingencies means having one or more backup executors. The person you name today might be dead, or incapacitated, or unable to be located, or just plain not willing to act 30 years from now. So you need a backup. And all executors you name should preferably be younger than you are to hedge your bets that you won’t run our of executors.

4. Distribute your Actual Assets Rather than Shares

As much as you might want to leave your house to one person, and everything else to another person, be aware that the legal result of you not having that house 20 years down the road when you die will be that the person who was supposed to get the house will receive nothing, and the person who you intended to receive everything else will receive 100% of your estate, including possibly all of the proceeds of sale of your house if you invested the money! 

So try not to give “specific bequests” in your will of anything more than nominal value, just use “shares” where you split up your estate into slices of the same pie. Some can receive a bigger slice than others, but this way everyone gets dessert. 

5. Completely Exclude Anyone who is Deserving from your Will

The more people you "cut out" of your will who might usually be expecting a gift, the more you heighten the chances of one of them challenging the will. You definitely don't need to treat everyone equally (at least under Canadian common law in Ontario), but if you have three children, and you give two of them $100,000 each, and the third one nothing, you are asking for trouble. Even if you have good reasons for doing so. 

If you are planning to cut someone out totally, don’t leave them the insulting $1 of times gone by, just explain briefly why you are doing it so they don’t later claim you simply forgot them, or had a clouded mind at the time of your will drafting. But do anticipate that even with these good reasons, you might be creating a lot of hassle for your executor and beneficiaries because of the estate litigation risk that is being created. 

Far better to give someone substantially less than others similarly placed - like $25,000 rather than $100,000 - because it will blunt the litigation urge. 

5 Things to Never Do if Stopped by Police on a Highway

Most of my criminal defence practice covers about 300 kilometres of Canada’s busiest highway, running from the Quebec-Ontario border in the east to Belleville in the west. While my work often involves helping individuals who live in the communities like Cornwall, Brockville and Kingston that are arrayed along that Eastern Ontario stretch of the Highway 401 (is there anyone who actually calls it by its official Macdonald-Cartier Freeway name?), it’s especially common for me to assist those who who were just passing through - often on their way to or from Montreal or Toronto, and points further east and west. They might get stopped by police along that all so busy corridor for one minor reason or another, but then things escalate.

If you’re ever stopped, I can offer you my top 5 things to never do if stopped by police on the highway. 

1. Lie to the Police

Yes, I know this one seems obvious. But police stops are stressful experiences. We can all do stupid things. We might not be thinking clearly. Often, you’ll have done nothing wrong, but lying to police can constitute the criminal offence of obstructing justice. So don’t give a false name. Don’t give a false birthdate. Don’t lie about where you are going, or what you are doing. 

2. Volunteer Information

No one has a legal duty to help the police, beyond providing very limited information mandated by law. If the police ask you about your name, you likely need to give it to them. If you are driving, you need to provide a driver’s licence, registration, proof of insurance, and limited other driving-related information if asked. But the police generally can’t force you to talk, regardless of whether you are the target of an investigation, a witness to an event, or just someone they casually encounter. 

3. Refuse to Provide Driving-related Information if Driving

Because driving a motor vehicle is a privilege, and not a right, the police can force you to talk about your driving. Beyond providing documents, if you’re involved in an accident the police can demand your side of the story. For regulatory purposes, there’s no right to remain silent. This rules also applies to other regulated activities, like when a regulatory agency is investigating your fishing activities, your hunting activities, or your income tax return.

A regulatory investigation can’t gather information compelled from you predominantly for the purpose of incriminating and charging you. But that can be the end result. Federal and provincial legislation creates many “information demand” powers in the regulatory context, but not in the criminal context. So a lawful drug manufacturer can be forced to talk, but an illegal drug dealer can’t. 

4. Refuse to Provide a Breath Sample

Even if you’ve been drinking, you very well might not be over the legal limit of alcohol in blood concentration, or otherwise impaired. But if you refuse a police demand to provide a breath sample, what your blood-alcohol level really was becomes irrelevant. Refusing to provide a sample is as serious of an offence as impaired driving or over .08.

There is a mandatory minimum fine upon conviction for refusing to blow, meaning you’re guaranteed to acquire a criminal record. So don’t worry about whether the demand for a sample is legal or not - let your lawyer worry about that later - just cooperate. That advice applies to all police activity. A search could be illegal, an arrest could be illegal, these are all things your lawyer might be able to raise later at your trial, and the illegality might very well lead to your acquittal. But don’t try to figure them out the lawfulness at the time of the events. Just let the police do their thing. 

5. Agree to a Search of Your Vehicle or Person

I get that there can be lots of psychological pressure to agree to a polite request “to take a peek in your trunk, just for a minute” even if you have 10 kilos of neatly packaged powder cocaine sitting in that trunk (true story, it happened on the Trans Canada Highway, and the driver did indeed say something to the effect of “No, I don’t mind of all, go ahead”). Either the police have the power to search, or they don’t. Sometimes they can lawfully search incident to arrest for evidence related to the offence they have reasonable and probable grounds to arrest for. At other times they will need a search warrant to conduct such a search. You should never try to obstruct their searching; but you shouldn’t consent to it.

5 Things to Never Do if you Hope to Successfully Appeal Your Income Tax Assessment

Every year around this time, I receive an increasing number of calls from prospective clients who have received assessments, requests for further information, or notices of audit from the Canada Revenue Agency. While all this correspondence needs to be dealt with in a timely manner, it's the assessments and reassessments that are the most sensitive because of the strict rules on how they can be challenged. Here are my top five things you should never do you if you hope to successfully contest your income tax (re)assessment.

1. Be Late in Objecting to the CRA

You only have 90 days from the date of the Canada Revenue Agency's Assessment or Reassessment to file an objection. While under exceptional circumstances you might be able to get an extension of that time, you can’t just ignore the deadline, or wait until you have gathered together all the information you think you might needed. Even if your objection is imperfect, file it anyway. You can always add additional information later. 

2. Miss Your Appeal Deadline with the Tax Court of Canada

If you lose your internal objection to the CRA, you’ll only have another 90 days within which to file your appeal to the Tax Court of Canada. The Court is completely independent of the CRA (unlike the internal objection procedure), but there are still strict (but different) rules on how you must craft, present and file your dispute of your (re)assessment. 

3. Hope Your Accountant or Tax Preparer Can Represent you Before The Tax Court

While you can appoint an accountant or tax preparer to represent you at the objection stage with the CRA, only a lawyer can represent you before the Tax Court. It can be any lawyer in Canada - there is no special sub-class of tax lawyers - but be aware that very few lawyers do work before the Tax Court because it has its own rules of procedure that are different from all other courts in Canada. The judges even wear purple sashes, which are very distinct from the usual red sashes of most courts in Canada. 

4. Fail to Sufficiently Explain Why the CRA is Wrong

As the taxpayer, the Income Tax Act puts the full burden of proof and argument on you to dispute any CRA assessment or reassessment. The CRA is presumed to be right, and it is up to you to prove them wrong. This burden is completely the opposite of criminal proceedings, where the burden always falls on the police and Crown. It doesn’t matter if you think this unfair, this is the way Parliament set up the tax system. 

5. Fail to Produce Compelling Evidence to Prove Your Case

Talk is cheap. What courts and the CRA objections branch like to see are documents. So saying you’re entitled to all sorts of deductions without any proof of your expenses, or saying all that money that flowed through your bank account isn’t taxable income even though you have no alternate explanation of where it came from, or arguing that your 10 million dollar mansion was acquired just by clipping coupons, without any proof of where you got the money to pay for it, won’t fly without hard proof.

Survive Working with a Barrister in Canada: 4 Things You Need to Know

In Canada, barristers are simply lawyers who go to court. Unlike in England, they're part of the same law societies as solicitors. While we've never worn white horsehair wigs unlike many other commonwealth jurisdictions - I've heard they were too difficult to obtain in Canadian colonial times - we do sometimes wear black robes that have a habit of getting caught on door handles as we attempt to swish imperiously in and out of rooms. 

Your life working with a barrister can be productive, or it can be miserable. In this post I'll explain to you the four steps you need to follow to make the relationship the former, and not the latter.

It doesn't matter if you're being dragged kicking and screaming to court in response to a criminal charge, are embroiled in a small claims or Superior Court of Justice civil suit, are trapped in family law proceedings, or maybe you need to initiate a court application to clarify your rights over real estate or the interpretation of a will. Unless you're planning to do the case yourself - and in over two decades of practice I've seen few positive outcomes for those who try the DIY route - you'll be stuck working with a barrister.

Step One - Be Sure You Need a Barrister

Clarify at the start of the relationship why you need the barrister. Many people come to see me thinking they might benefit from a lawyer, but aren't quite sure what the lawyer can do for them. I always tell my clients that a little legal advice can be a bargain. But going to court unless you absolutely have to go is never a bargain. 

When you do speak to the barrister, explore upfront exactly how he or she might be able to help you. Don't accept vague answers from a barrister about his or her plans to help you. Instead, push the barrister to explain step by step what his or her plan is for you. 

You might not really need a barrister. And it could be worth a free five minute phone call or a one hour paid consultation in order to find that out. Even if you pay up front for a bit of advice on your matter, possibly including asking the barrister to write you a formal legal opinion about the likely prospects of success of your case in court, it will still be way, way cheaper than spending money on court legal fees once litigation has started.

You might need a psychologist or family therapist or credit counsellor or accountant more than a barrister. If you have a neighbour dispute, you should weigh the expense of a real estate agent versus a barrister. Family counsellors for marriage troubles are definitely cheaper than family lawyers. I'm not suggesting other professionals can definitely fix your problems, but they might provide a more graceful exit to them than would litigation.

However, sometimes going to court will be the only option. 

Step Two - Clarify the True Cost of the Barrister

Demand up front from the barrister a fair assessment of fees for your matter, and in turn be prepared and realistic about your ability to fund those fees. Push the barrister for a block flat fee if possible, even if it's only for specific stages of a case, as that will best control and predict your costs. 

If fees need to be hourly, make the barrister explain why. And don't make the mistake of thinking a lower hourly rate will necessarily lead to a lower cost of the case, since a cheaper by the hour barrister might have less experience, and consequently wind up spending more time on your case. 

Also don't be shocked by barrister fees. Many solicitors actually take home more money than barristers, but people don't complain about their seemingly "smaller" fees which are based on volume and where much of the work is being done by trained clerks. By comparison, barristers will be doing most of your work themselves, and court cases tend to suck up an enormous amount of lawyer time as compared to a simple real estate transaction which a lawyer might only personally spend one or two hours working on. 

If you can't afford the fees, tell that to the barrister upfront. There may be less expensive ways of proceeding available, even if they're not the preferred ways of proceeding. Don't mislead yourself about being able to afford a potentially very costly case because you think it will settle. You always need to plan for the worst case scenario when it comes to litigation. 

Regardless of whether the fees are block or hourly, don't let the barrister be vague about how extras like "disbursements" can drive up those fees. Establish at the start if there are likely to be significant disbursements like transcript costs, expert witness fees, or printing and binding fees. 

A rule of thumb is that criminal cases tend to be cheaper than civil cases - even small claims - because they simply take up less barrister in-court and preparation time, settle at earlier stages, and involve fewer pre-trial proceedings. You'll usually be able to get a block fee from a barrister for a criminal case, but civil cases will usually be hourly because they're less predictable. 

Costs of appeals for civil or criminal cases depend upon the complexity of the trial; a four week trial with 500 exhibits is going to cost more to appeal than a one day trial with five exhibits. But you may be able to get a block fee quote for an appeal - all the appeals I take on are done as block fees. 

Step Three - Work Collaboratively with the Barrister

Press the barrister from the start of the relationship on what he or she needs from you. You giving the barrister appropriate help from the get go will make the relationship far more successful and cheaper for you. 

Does the barrister want a factual chronology? A list of witnesses together with their addresses and phone numbers? Copies of possible court exhibits, including photos? You won't be able to anticipate all barrister needs, so ask. If you're having trouble getting direct answers on needs from the barrister, press the barrister's law clerks for what kinds of things they usually collect for cases. You need to work collaboratively with the barrister. 

Your physical health is a collaborative endeavour with your family doctor. Same with your legal health where your barrister is concerned. 

If the barrister seems completely disinterested in your opinions, and your collaboration, find another barrister. 

Don't make the mistake of thinking that your only obligation in working with a barrister is paying the bills. Really your barrister is more of an interpreter, and negotiator and intermediary between you and the court; your barrister isn't your replacement or doppelgänger. Making your barrister relationship the most result and cost effective possible requires your full participation in the case.

Step Four - Continuously Evaluate What Would be an Acceptable End Result

Evaluate in advance of retaining the barrister, and continuously reevaluate during the course of your barrister-client relationship, what would amount to an acceptable court result or end game for you. Don't enter the relationship with vague notions of "total victory" as even if your barrister gets you to that point, you might might no longer be capable of recognizing what victory looks like after you've been in the court process for too long. So be realistic in your court outcome expectations, and continually examine the options you're presented with for getting off the litigation treadmill. 

I'm not saying you can't aim higher than the minimum acceptable result, just that you need to consider your options from the start. It might take you weeks of careful reflection to figure out what result you really want. You'll have the necessary time to reflect if you consider things from day one of the barrister-client process. You might only have 24 hours to decide on a deal once a firm offer is made. If you really didn't "do it" in a criminal case, then make clear up front to your barrister that the only acceptable result to you is full exoneration. That way he won't waste his time trying to negotiate a deal for you, but rather will first try to convince the Crown to drop the charges, and second will simply prepare to take your case to trial. 

In civil cases, an acceptable result might be more intangible. One crucial factor you must consider is that you don't want to spend more on barrister fees than you save in settlement payments. As much as you don't want to give the other side a penny of your hard earned money, a good barrister will be frank with you about when your legal costs will outweigh your potential civil windfall.

For instance, if you hire a lawyer to sue someone in small claims court for $5000 in damages, get a judgment for $4000, get $750 in court costs, and pay $5000 in legal fees, and you'll be $250 poorer than when you started. But get a judgment for $20,000 with $3000 in court costs, and you'll be $18,000 ahead on that same $5000 amount of legal fees. So for civil matters, you need to be really careful in evaluating how much your case is worth - regardless of whether you're the plaintiff or defendant. 

If any barrister you're considering retaining seems reluctant or evasive to ballpark what kind of legal fees you might be facing at different stages of your case, and will only reveal his or her hourly rate, find another barrister.

But there are things worth fighting for, even if fees climb. For the control and survival of your business. To be able to continue to practice your profession. For the custody of your children. Just be realistic about what result you can live with, based on asking your barrister about the likely outcomes. But because your barrister may have hundreds of clients, don't expect him to be able to pry out of you what you really want, and to read your mind, if you don't tell him. 

HOW TO CLAIM CANADIAN CITIZENSHIP BY BIRTH OR DESCENT - A GUIDE ESPECIALLY OF INTEREST TO AMERICANS

In 2017 I’ve seen a huge uptake in potential client enquiries, especially from Americans, about confirming their proof of Canadian citizenship.

Canada has one of the world’s more liberal citizenship regimes, where you can be eligible for Canadian citizenship and acquire proof of that citizenship primarily by way of: (1) location of birth in Canada; (2) at least one parent being a Canadian citizen; or (3) by a naturalization application process after being accepted as a permanent resident.

THE SIMPLICITY OF CANADIAN BIRTHRIGHT CITIZENSHIP - JUS SOLI (RIGHT OF SOIL)

Lawyers love Latin, and citizenship law is no exception. Jus Soli is the technical legal term for citizenship acquired through birth. Only about 30 countries in the world - almost all of which are in North and South America - unconditionally grant citizenship to anyone born within their territories.

Lex Soli is the term used for the body of law governing if and how Jus Soli applies. Canada does have a narrow exception to Jus Soli in that if neither parent is a Canadian citizen or permanent resident, and either was employed at the time of birth by a foreign government or international organization in Canada, then you’re not entitled to Canadian citizenship even if you’re born in Canada. This is more than a theoretical exception, as Canadian-born Deepan Budlakoti found out when he was effectively rendered stateless through this process. 

A certified copy of your birth certificate from a Canadian province or territory is the main document you’ll need to submit with your application to claim Canadian Birthright Citizenship.

THE COMPLEXITY OF CANADIAN CITIZENSHIP BY DESCENT - JUS SANGUINIS (RIGHT OF BLOOD)

Citizenship by Descent - also known as Jus Sanguinis for Latin lovers - gets more complicated than Birthright Citizenship. There are several exceptions to Jus Sanguinis in Canada, and not just who you were born to but also your date of birth can be very important.

Generally the Citizenship Act grants Canadian citizenship to those born outside Canada to at least one Canadian parent, but the Act was recently changed to limit that citizenship by descent to one generation, meaning the children of children who so acquired citizenship by decent won’t also become Canadians automatically. Thus you’re a Canadian if one parent was a Canadian, but not if only a grandparent was a Canadian. 

However, and this is a BIG however, the "first generation rule" only came into force on 17 April 2009 and is not retroactive. So if you were born prior to 17 April 2009 when the new rule came into effect, you’re in luck and can still claim Canadian citizenship regardless of how many generations back your Canadian direct ascendents were born in Canada (subject unfortunately again to some exceptions). This is especially important for Americans, who may be descended from Canadians who moved to the United States for economic reasons a number of generations ago.

For proof of citizenship by descent, in addition to a copy of your birth certificate from the country in which you were born listing the names of your Canadian parent(s), you’ll also need proof of at least one of them being Canadian such as their own birth certificates or their citizenship certificates. If you’re hoping to prove a higher generation of descent, you’ll need birth certificates and proof of citizenship up the chain of descent. 

You’ll also need certified translations of any documents in languages other than French or English. 

Unlike Birthright Citizenship, Citizenship by Descent can get very complicated. I often recommend a consultation with an immigration lawyer for those hoping to claim Citizenship by Descent in order to avoid frustration and disappointment over (mis)assumptions and the proof required.

WHY YOU NEED TO APPLY AS SOON & AS COMPLETELY AS POSSIBLE FOR PROOF OF CANADIAN CITIZENSHIP

Current Government of Canada processing times for proof of citizenship range from five months to a year, depending on the complexity of your application. Even the slightest error in the documents you submit can result in your application being returned and you having to completely restart the process. Thus you should apply as soon and as completely as possible. You’ll find all the required government application forms online, including an estimate calculator for current processing delay times.

Obtaining proof of citizenship is something I tell my clients they can do for themselves. But if success on the first try and in as rapid a means as possible is important to you, consider using an immigration lawyer. Our fees (and the fees of most other lawyers who handle citizenship) aren’t especially high as compared to other kinds of more complicated immigration processes.

Another option most lawyers will offer is a consultation on eligibility for citizenship, when you are thinking that you may or may not want to undertake the application yourself, but wish to definitely confirm before doing so whether or not you’ll qualify. Canadian citizenship through birth or descent isn’t discretionary - either you’ll qualify, or you won’t. 

NO FEAR FAMILY LAW: TOP 3 TIPS ON HOW TO PREDICT FAMILY LAW COURT RESULTS

I'm not a fortune teller. I can't predict the future. But I can often predict family law outcomes, because the legal principles are so simple.

That's not true with every area of the law. Some practice areas are terribly complex. But not family law. It's the facts that get complicated - decades long decontructions of relationships - not the law.

"No Fear" Family Law aims to take away the fear of the unknown, and empower clients with knowledge of likley outcomes that usually aren't as bad as they fear. Here are three of my top likely outcome tips.

1. Shared custody - Custody will probably be shared if that is what the parents want, with no child support being payable. There are exceptions, but you may have a major fight on your hands to convince a court to give you an exception because of the fundamental principle that the best interests of the child involve maximizing contact with both parents.

Even where child support is payable, it will be according to a fixed table amount created by the legislature. Plug in numbers of children and parental income, and it spits out a number. Simple. What are known as "special and extraordinary expenses" - dentist, soccer, summer camp - are split as a percentage between the parents according to their respective incomes, even where no child support is being paid.

2. Equal split of property - Matrimonial property will be split evenly, except for property that was brought into the marriage. Again, there are some exceptions, but for long term relationships, splitting things down the middle is the norm since usually most of what couples have was acquired jointly, or at least shared jointly. Owning a business could introduce some complexity to this split, especially where both spouses have involvement in the business.

3. Spousal support depends on income disparity and length of relationship - Spousal support will only be payable where there is significant income disparity, and then only for about 3 years, unless it is a long term relationship in which case lifetime support may be payable, subject to a change of circumstances where the recipient spouse is later earning enough for self-support.

Unlike child support, there’s unfortunately no simple math formula for spousal support. Often about 20 to 25% of the payor’s pretax income is ordered in spousal support, but those payments will be tax deductible in the payor’s hands, and taxable in the recipient’s hands (child support is the opposite: taxed in the payor’s hands and not taxable in the recipient’s hands).

The major challenge in determining a fair level of spousal support is that income must be fairly established, as the claimant may focus on that one year with a very high income in the past, and the payor's income may have fallen dramatically because of the family breakup.

Although you might be hoping for different outcomes than my top 3 predicted family law outcomes, you'll have to fight very, very hard, have very compelling facts, and have considerable legal resources to achieve dramatically different results. But definitely details on how these results are implemented are very important to negotiate or have a court decide upon, and can vary greatly from case to case.

Read More About "No Fear" Family Law.

OVERCOMING CRIMINAL IMMIGRATION INADMISSIBILITY TO CANADA & SECURING YOUR WORK OR PLEASURE TRAVEL OR IMMIGRATION

We all make mistakes. Occasionally, for some of us, a mistake leads to some sort of “conviction.” A conviction could be the consequences of parking too long in a one hour parking zone, exceeding a highway speed limit, getting in a bar fight, shoplifting some sunglasses, up through more serious offences.

I’ve had clients enter Canada dozens of time, only to be told by the Canada Border Services Agency (CBSA) on their 57th arrival after landing at a Canadian airport, or crossing at a land border, that they’re inadmissible due to criminality. They’re put back on the next return flight from where they just arrived, or told to head their vehicles back in the opposite direction and not return. These are clients who might mostly earn their livelihoods in Canada as sales reps, or have close family in Canada. They’re understandably shocked at being refused entry, especially because some of them have been previously welcomed to Canada so many time with open arms. The thing they all share in common is one or more “convictions” somewhere in their pasts, sometimes decades previously, and sometimes for acts that aren’t even considered “criminal” where they come from.

THE LAW

Section 36 of the Immigration and Refugee Protection Act governs criminal inadmissibility, explaining rather cryptically:

A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

The problem is that it can be very difficult for those visiting (or moving to) Canada to know: (1) whether the thing(s) they’ve done in the past are caught within the criminal inadmissibility drag net, and (2) even if they are caught up in inadmissibility, can they be considered to be rehabilitated?

One of the most problematic offences is impaired driving (DUI). In some countries, it's considered a regulatory highway traffic offence, and not a criminal offence. And even where it is a criminal offence, a person might not have been formally “convicted” of it. And further confusingly, while DUI is usually prosecuted in Canada as a summary conviction offence, because at the Crown’s election it can also be prosecuted by indictment it means that a single DUI can make you criminally inadmissible.

THE FIX

But there is a fix to all of these problems: criminal rehabilitation. It’s an application process which demonstrates to the Canadian government that because of the passage of time since your conviction, and because of your having stayed out of trouble since that time, you shouldn’t be excluded from Canada. It’s akin to an immigration criminal pardon! I’ve also found that unfortunately sometimes the CBSA makes mistakes, and declares criminally inadmissible people who don’t at all fall within that category, but you may still need a lawyer to correct that mistake.

While there are certainly some immigration procedures that you might try to undertake yourself, I urge you to retain a lawyer to assist with criminal rehabilitation. You might even need two lawyers - one from your home jurisdiction where the offence was committed and one in Canada - to deal with the translation of the foreign conviction into Canadian legal terms. This isn’t always necessary for countries having similar legal systems to that of Canada, like the United States, but your Canadian immigration lawyer can discuss the precise procedure with you depending on your circumstances.

THE PROCESS

Generally the rehabilitation process involves you gathering together your prior conviction information, having criminal record checks done in every jurisdiction you’ve lived for a significant time, and then a Canadian lawyer will present your rehabilitation application to the Canadian government. Some applications are more straight forward than others, depending on the number and severity of prior convictions, and how much time has passed since those convictions. You’ll usually be barred from Canada until your application has been reviewed, so the sooner you undertake the rehabilitation process, the faster you’ll have a chance of reentering Canada.

And don’t wait until you’ve been barred from Canada to start this process. If you have an upcoming visit to Canada, and have prior convictions, consult a Canadian immigration lawyer prior to your visit about whether a criminal rehabilitation application might be necessary. Even if you've been entering Canada repeatedly without a problem, don’t be lulled into a false sense of security as I’ve had clients who haven’t had entry problems for years who suddenly are banned from Canada for a year or more while we sort out the inadmissibility issue. Just because the CBSA hasn’t stopped you yet doesn’t mean that a new officer won’t take a different view of your past, and doesn’t mean that the CBSA won’t sign a new information sharing agreement giving it greater access to foreign criminal background data which might include your name.

Neither the CBSA nor the Department of Immigration, Refugees and Citizenship can give you legal advice on criminal inadmissibility. It’s one of the most complicated areas of immigration law because of the need to compare two different legal systems to see how a conviction in one system might match up with available offences in another system. So I do urge you to consult a lawyer prior to travelling to Canada so that you aren’t frustrated in work, family or tourism trip where you will have invested lots of time, planning and money. I likewise frequently refer Canadians to U.S. immigration lawyers to deal with criminal admissibility when travelling south.

Top 10 Ways to Stop Dead Internal Disputes Within Your Business Before they Arise

Media attention often focuses on business struggles between competitors, like apocalyptic patent litigation between Apple and Samsung. The popular allure of such disputes seems at least in part to be the same as the allure of athletic contests: conducted in public, among relative equals, with the perception that winner takes all.

Less talked about are internal disputes within businesses and their owners, be they two childhood friends who have tossed in some money to open a small restaurant and now can't agree on the menu, three professional dentist partners who disagree over how practice profits should be split, or four large corporations undertaking an oil and gas resource exploration joint venture who can't settle on where to drill. These internal disputes are likely more preventable than the external ones with a bit of early planning, and perhaps a little legal advice. While the type of dispute prevention will vary according to the type of business and the parties involved in the business, there are a few fundamental principles that can help everyone prevent internal disputes from ruining otherwise successful business endeavours.

Tip # 1: Plan for some business dispute DIY prevention at the same time as you plan out how you are going to dominate your market segment with your new business. Dispute prevention works best in reverse. Meaning, figure out in advance the most likely areas of dispute a month, a year or a decade down the road among the owners of your business, and then work backwards to establish contingency mechanisms to resolve at least some of those disputes. Like, what happens if a co-owner wants out before the business is profitable?  

2. Put you business agreement in writing. It doesn't have to be a lengthy document. One hundred pages won't necessarily give you any more certainty than two pages. Seriously. A complex and prolix document may only give partners more language to fight over in the future, and likely won't be well understood at the time it is signed. But the writing is key, otherwise even two people who trust each other implicitly will tend to develop differing recollections of exactly what was agreed upon as time passes after the establishment of the business relationship. I'm not saying every single action needs to be fully documented, but at least be clear on the basics. I see a lot of disputes where very reasonable people who completely trust each other go into business with very different understandings of what has been agreed upon.

3. Be clear on the businesses legal structure. This isn't something you necessarily need a lawyer for; you can probably figure it out from Internet information. But a lot of people don't know how their business is legally established, which can have lots of consequences when it comes to ownership, debt liability, taxes and sharing of business control. Your main options are as a sole proprietor, as a partnership, or as a corporation. But things can get tricky when these three basic forms get combined. Like two people who believe they are each sole proprietors, when in fact the law deems them to be a partnership. Not only small businesses can run into trouble in this area; sometimes large multinational corporations get together to jointly pursue a business opportunity, and wind up in an accidental partnership when in fact they had intended a joint venture.

4. Be clear on who owns what. Putting everything in one party's name, with a verbal understanding that the other parties actually have ownership rights because they are contributing capital to purchase assets, is one of the best ways I can think of to later wind up in court fighting over assets.

5. Be clear on who is contributing to or paying for what. When people get together in informal ways, and start contributing money to get a business going, and later continue contributing money to keep the business going, they often don't divvy up expenses by percentage. One pays the rent. Another pays the electricity. A third pays for the inventory. Although perhaps initially convenient, this way of financing a business becomes difficult to track, and can lead to later disputes over who contributed more or less to the business. 

6. Be clear on how the profits will be utilized or divided. Whether there are any profits, and whether they will be reinvested into the business or taken out to pay the personal expenses of the owners, may quickly become an issue if business partners don't agree on a strategy in advance.

7. Be clear on who is responsible for the debts. Just because you didn't sign a loan guarantee, doesn't mean that you aren't on the hook for any debts of the business.

8. Be clear on the overall purpose of the business. A successful business that starts out manufacturing and wholesaling shoes may not make an easy transition into the electric car design field. Possible, yes. Easy, definitely not. If more than one person controls the business, they will need a common vision. Sometimes putting that vision in writing up front will help remind everyone of business' purpose if vision drift starts to affect performance later on.


9. Be clear on how disputes will be resolved. It's not possible to foresee and address all manner of future business disputes, even in the most complex of written agreements. However, the parties might be able to agree on a few basic points. Like that majority vote of the partners will be decisive on certain issues. That binding arbitration will be used for other issues. Or at least that a courts of a particular jurisdiction will be the place to settle disputes through litigation.

10. Be clear on how the business will be wound up or sold if one of the owners doesn't want to continue with it. People get tired. So do businesses. Sometimes it's better just to call it a day, and start one or more new businesses, rather than continue to fight to save or control an existing business. But every business needs an escape hatch, to avoid the captain(s) and crew becoming trapped in a sinking or fighting ship.