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.

TO BLOW OR NOT TO BLOW, THAT IS THE QUESTION

You’re on your way home, coming back from watching a hockey game at the local sports bar with friends. You’re two blocks from your residence when you make that last right turn only to meet a lineup of vehicles, with blue and red flashing lights in the distance. The police are conducting a RIDE program. Soon after a uniformed officer walks up to your driver’s side window. The officer asks you a few basic questions on your whereabouts this evening. You comply and answer his questions. The officer then informs you that he has reason to suspect that you’ve been drinking and driving and ask you for a breath sample.

Do you have a right to refuse the officer's demand?

Although the officer cannot physically force you to provde a breath sample, refusing to comply with the officer’s demand is an offense, under section 254 of the Criminal Code, with serious consequences. In fact, the penalties are essentially the same as if you had failed the Breathalyzer test. Furthermore, a conviction may affect your livelihood, your ability to travel abroad and will likely increase your insurance rates.

Generally, lawyers will tell their clients provide a breath sample, because it’s usually only after having reviewed the disclosure that a lawyer can determine what types of defence have a reasonable chance of success.

What must the prosecution prove?

When someone refuses to comply with an officer’s demand of a breath sample, the prosecution must prove beyond reasonable doubt the element of actus reus, namely that a reasonable demand was made by the officer and that you failed or refused to provide the required breath sample. The prosecution must also prove the element of mens rea, namely that understood the officers demand and that the refusal was a conscious act.

For many people accused of refusing to provide a breath sample, this may bring feelings of embarrassment, helplessness and guilt, which in return may lead them to plead guilty and just get it over with. Although there is an incentive to pleading guilty early, namely within 90 days of the offense, before doing so, consulting with a criminal lawyer as soon as possible is highly recommended. Drinking and driving offenses are very complex and the defences will vary according to the facts of your case, therefore we welcome you to call for a free initial contact with one of our criminal lawyers.

WHY A REAL ESTATE TRANSACTION IS THE SECOND BEST BARGAIN YOU'LL EVER RECEIVE IN LEGAL SERVICES

If you read my last post on wills being the best bargain you'll ever receive in legal services, you might be wondering why I rank real estate transaction as the second best bargain - instead of perhaps the first best bargain. There are a few reasons.

First, you don't have a choice in Ontario (where I mostly practice) over using a lawyer for a real estate transaction. Other places you can use non-lawyers to close a transaction, but not in Ontario. By comparison, for wills DIY is an option (though not a very good one).

Second, real estate transaction legal fees will often cost more than wills in absolute terms. Still not much, but more. However, strangely enough people don't seem to complain about real estate transaction legal fees. Perhaps because they are buying or selling a very expensive thing, because real estate agent commission fees will be many times greater than the lawyer's fees, or because they may be making a tidy profit off the real estate sale (if selling) or getting their dream home (if buying), and thus relatively modest legal fees don't seem to them to be a big deal.

Third, but real estate transactions remain a great bargain in legal services. In fact, real estate lawyer fees haven't gone up in decades! We're not just talking about fees adjusted for inflation, we're talking about real dollars fees. The $1000 transaction fee in 1971 is still the $1000 transaction fee in 2013. Amazing, isn't it. Whereas other legal fees have risen significantly, for various reasons real estate transaction legal fees have not. Notwithstanding house prices have increased many times over.

It's beyond the scope of this post to explain why these fees haven't gone up, just enjoy the fact that they haven't. And that there isn't any risk of them rising appreciably for the foreseeable future.

But just like when shopping for a lawyer to do your will, shopping for a real estate lawyer should not generally be a cheapest is best exercise. Lots can go wrong in a real estate transaction. Quite a bit of personal care and attention is required on a lawyer's part to make sure a transaction closing goes smoothly. If you simply go with whomever is cheapest, you stand a good chance of not getting much attention from the lawyer, not because the lawyer is a "bad" lawyer, but rather because with prices that low s/he simply can't afford to give much time to clients when overheads are so high.

Even for those of you reading this post who aren't in Ontario, you should still seriously consider using a lawyer for your real estate transaction. Sure, the advent of "title insurance" has meant that a number of the inquiries lawyers used to routinely make are no longer absolutely necessary, but we all know that insurance coverage often doesn't turn out to be as good or as comprehensive as we initially had hoped it would be. Better to prevent problems in advance through a lawyer conducting diligent inquiries, rather than having to fall back on insurance to compensate you (but not fix the underlying problems) later.

With fees so low, why does any lawyer even bother anymore practicing real estate law? I'll give you perhaps a surprisingly idealistic answer to this one: because many of us believe it to be an important public service. Plus many of us enjoy the client interaction in an area of "happy law" where both buyer and seller are excited by the prospect of the life-changing potential that a real estate sale or purchase brings with it. For many clients, a real estate transaction may be the only involvement they ever have with a lawyer (should they ignore my last blog post, and not consult a lawyer for a will). Sure, the legal fees earned from real estate transactions can also help pay the bills in a law office, but people need to realize what a great bargain real estate legal services are compared to the amount of legal work involved in closing a real estate transaction.

The purpose of post this isn't to somehow invoke your pity for the poor, overworked, underpaid real estate lawyer. Lawyers are grown up guys and gals who are old enough to make the decision to get out of real estate law if they decide the work isn't worth the earnings. Law is both a business and a profession, and needs to be practiced as such. Clients do us a great favour in trusting us with their legal work, and not the other way around. But a public who increasingly hears horror stories of astronomical legal fees often driven by apocalyptic litigation strategies (like in commercial or family court), needs to realize that there are legal bargains still out there where everyone can feel good at the end of the day that they were able to afford professional legal services at a very reasonable cost, which made their lives better.

WHY A WILL IS THE BEST BARGAIN YOU'LL EVER RECEIVE IN LEGAL SERVICES

One of the understandable realities of private legal practice is clients wanting to know how much a legal service is going to cost. Unlike buying a television, usually clients don't ask "how much?" so that they can shop around for the best price, because no two lawyers or the services they provide are exactly alike. Rather, clients seem to ask about price to see if they can afford the service, or to determine if hiring a lawyer to do the work is worth it to them, instead of trying to do the work themselves, or not seeking a legal solution at all to their problem.

From what I hear, rather than focusing primarily on price, picking a lawyer will often involve people coming up with answers to questions like: (1) who do I trust?; (2) who do I think is most skilled and experienced?; (3) who responds best to my needs, like quickly replying to my questions or at least returning my phone calls or e-mails?; and (4) who is most convenient, either because the lawyer offers services through the Internet so that geographic location isn't a factor, or because the lawyer happens to be physically located close to where I live or work?

Picking a lawyer solely on price may be false economy. If you're retaining a lawyer on an hourly basis, hiring one who charges 30% less per hour, but ultimately bills you 50% more time, will cost you more in the long run.

Likewise, if you're hiring a lawyer based on a block/fixed fee, which is common in many solicitor matters like the preparation of wills or the conduct of real estate transactions, picking based on price (with a preference for low over high) might mean that you have little personal contact with the actual lawyer because s/he simply can't afford to give you a lot of face time due to the very low fees which mean that in order to pay for a high overhead and still turn a slight profit, a very large amount of business needs to run through the practice that inevitably will be mostly handled by non-lawyers under the overall supervision of the lawyer.

I've been fortunate that people never decide not to hire me because of fees (hopefully because they value my experience and responsiveness to their needs), except in one area of law: wills. I often conduct litigation on behalf of clients where the bills can unfortunately mount up because of the multiple court appearances and painstaking drafting of voluminous submissions that can be required in court actions, but those clients seem very satisfied with the value for money that they receive. Perhaps because I stay engaged with them to keep them informed of court progress, and collaborate with them on overall strategy.

However, when it comes to wills, I've found people occasionally choke on cost. It doesn't happen that often, but it does happen. The unfortunate part of the price aversion is that wills are likely the best value and often the least expensive of the legal services that I offer.

I sometimes counsel prospective clients not to hire me for litigation, even though that's how I mostly earn my living, because the amount in dispute is so small that my fees could exceed their potential exposure to liability. I believe I have a public duty not to profit from people's desperation when being dragged into court, and only take on cases when it seems I can provide value to clients that outweighs the legal risks they are exposed to.

But going to a lawyer for a will is going to always pay off in the long run. The risks of not seeing a lawyer for your will include hundreds of thousands and sometimes even millions of dollars not going where you intended it to go after your passing. Relatives could fall to infighting over your assets. The government could wade in to impose heavy taxes and fees. Everything could get tied up in court for years.

I haven't conducted any kind of survey to determine what people expect to pay for a will. But in my personal opinion (not speaking as a lawyer, but as a person who needs a will himself), a lawyer doing your will is probably the best bargain you will get in the legal services world. While the price of a will can vary depending on its complexity, they start at just a few hundred dollars. And that's not just my fees, but many lawyers' fees. Adding in powers of attorney for property and personal care will only slightly raise the price, and there is usually a significant discount for two spouses who have wills done at the same time (in Ontario, spouses always need separate wills).

To be frank (and I try to be as frank and open as possible with my clients and on this blog), I too prior to becoming a lawyer used to think wills were super simple things that one could whip up all by yourself on a Saturday afternoon when watching a football game on television. But then in law school I started to read about all the will disasters when things hadn't been executed properly, or important clauses had been forgotten, or unhappy relatives whom had been intentionally forgotten decided to initiate decades-long court battles worthy of a Dickens novel to overturn a will that they perceived as unjust.

Then, when I started drafting up wills in private practice, and reviewed voluminous legal texts on just how I was supposed to do that, I increasingly appreciated all the skill and care that need to go into a properly drafted will or power of attorney. The lawyer needs to learn about and understand your life. That can't happen in a ten minute meeting that is mostly comprised of the phrase: "sign here." Often more than one lawyer-client meeting will be required, the lawyer may need to carefully review a several of your financial documents, and some legal research could even be justified to ensure you get the will you deserve, that is ideally custom-crafted to your own personal circumstances. Not just to the circumstances of some "fill in the blanks" "model client" who doesn't really exist.

We all know there is an increasing litigiousness in our society. We also know that we are all passing away richer than ever. Now, if you own a home without a mortgage (or at least plan to be mortgage free in the future), you will be passing away rich by historic standards. Now, more than ever, it's vital that your assets go where you want them to go. Plus, with fewer and fewer people getting legally married, common law spouses will not necessarily have the same rights to assets/insurance/pensions of a deceased as would a legally married spouse.

So see a lawyer about your will. And don't be put off by the cost. It'll be the best bargain you'll ever receive in legal services! Trust me. I'm a lawyer.

FIVE THINGS TO NEVER DO IF YOU WANT TO SUCCESSFULLY APPEAL AN ADVERSE JUDGMENT

There comes a time in all our lives when we receive some kind of official pronouncement that we disagree with. Being rejected for a licence or permit. Being told that we don’t have the rights we thought we had. Losing in a civil money dispute, in family court, or even at a trial for a criminal or regulatory offence.

We might find the result hurtful and unjust. We might be outraged. And we might remain firm in our convictions over the justness of our cause!

Some will just swallow the defeat and move on. But others will want to continue the fight.

Most of the world’s legal systems have created fairness check mechanisms on first level decisions, regardless of who is making the decision or what subject the decision relates to. The buck almost never stops with the government desk officer, the hearing tribunal, or the trial judge. At least one level of appeal of an adverse decision is almost always possible if you look hard enough for an appeal route.

A psychologist could probably give you a helpful take on the emotional toll that fighting on entails, and what kind of person is more likely to continue to fight rather than throw in the towel. But my professional focus is solely on whether and how the continued fight can be won.

In the over two decades I’ve been helping clients with appeals (and watching others by necessity or choice represent themselves), I’ve seen lots of missed opportunities for winning appeals because of deadly but completely avoidable mistakes that people make shortly after receiving that decision they want desperately to overturn. Here are a Canadian appellate lawyer’s insider tips for five things you should never do (and I frequently see done again and again) if you want to continue the good fight, which should help you out regardless of where you live.

  1. BE LATE TO THE PARTY. It doesn't matter how great your arguments might be; if you're late on an appeal, you're almost always out of luck. And some appeal filing periods can be crazy short. Like 7 days from the decision. Usually you've got 30 days; occasionally as long as 90 days. In that time, you’ll need to find a lawyer (or figure out the process yourself), get a copy of the decision and the materials that were reviewed in making it (you might need to order transcripts or request government records), draft plausible grounds for appeal, track down the responding party to serve the appeal notice on, and file the notice with the office, tribunal or court hearing the appeal.

  2. GET LOST FINDING THE PARTY. There are more places out there to appeal to than you might expect. In federations like Canada or the U.S., you need to figure out if you’re going to a provincial, state or federal appeal body. You might also need to determine if you’ve got a final order or interlocutory (interim) order, as believe it or not their respective appeals might go to different places. After being late, appealing to the wrong place is probably the most common completely avoidable reason for failed appeals. I’ve seen enough lawyers get the appeal route wrong. Sometimes, even the courts themselves disagree over which one of them should be hearing an appeal!

  3. THINK IT'S SIMPLY ANOTHER KICK AT THE SAME CAN. The time to make your best pitch is with the first instance official, tribunal or court. Appeal bodies love the word “deference” to lower officials, and will liberally use that word against you if you don’t give them very good reasons why they should overturn a lower decision. You can’t usually appeal errors of fact, only errors of law (though it’s possible to turn big enough factual errors into errors of law). So it’s deadly to try to appeal on the basis that you think a decision is merely wrong, stupid, or misguided. Even if the person you’re appealing to is inclined to agree with you, she can’t simply substitute her own decision for the decision of the lower official. There has to be some kind of significant legal error you point out that is worth interfering with.

  4. ASSUME YOU'VE GOT AN EVEN SHOT. Casino gamblers and appeal gamblers both sometimes suffer from magical thinking on odds not rooted in reality. And while its easy to get stats on roulette with a double zero having a 5.26% house edge, it’s a lot more difficult to pin down precise odds on appeals. They’re definitely less than 50-50. Your best shot at winning is always at first instance - when you originally submit that government form or appear before that tribunal or trial court - not on appeal. In Canada, the odds of getting some kind of remedy out of an appeal are probably somewhere between 1 in 3 and 1 in 4, based on available appellate court data. If the stakes are high, those aren't such bad odds. But if you're fighting about a minor issue, you need to reflect on whether the financial and emotional cost is really worth it.

  5. ONLY MAKE ONE ARGUMENT. You might think you've found that one killer, slam dunk argument for an appeal. The one that no one could reject. But not everyone sees the world as you do. So even if a reviewer has sympathy for your cause, she may not buy your one argument wonder. Come up with more. I often come up with a dozen or more possibly viable grounds of appeal for clients. Sometimes we whittle that number down a bit for the actual appeal argument, but which of those arguments appeal officers and judges seize on as the winning strong argument continues to surprise me, so it never pays to limit your arguments other than eliminating the ones that stand no chance of success.

THE RIGHTS OF MOTHERS AND FATHERS IN CHILD PROTECTION CASES: THE NEED FOR EVIDENCE TO ARGUE FOR CHILDREN'S BEST INTERESTS

Everyone agrees the "best interests of the child" test trumps all in child protection proceedings. However, the innumerable child protection court cases which reveal five versions of children's best interests - the Children's Aid Society (CAS) version, the Office of the Children's Lawyer (OCL) version, the father's version, the mother's version, and the court's version - demonstrate the often highly subjective nature of children's best interest assessments. Child protection law is more "art" than "science." Which is why expert reports, while helpful, are never definitive in presenting the one ideal plan of care that will be in the children's best interests.

If one even looks at basic children's law principles like children are generally better off residing with their parents, parental contact should be maximized in access situations, and wishes of older children should be taken into account when making best interests assessments, competing views of best interests quickly turn the conversation into a quagmire if CAS insists neither parent is fit, both the mother and father insist it is the other parent who is unfit, and the OCL expresses the children's views that they want to live equally with each parent.

The demand you hear most often from child protection judges is for more evidence of best interests. Judges don't want to guess, they want to decide on facts. So if you - whoever you are - are putting forward a particular plan of care for a child, you're going to need some cold, hard facts to back up why that plan is feasible, rather than just wishful thinking.

Rules of evidentiary admissibility are pretty loose in child protection, so you don't need to get too hung up on legal formality. Letters written by relatives, or social workers, or medical professionals, or addiction counsellors can all work, though usually they should be appended as exhibits to someone's affidavit sworn to present the overall version of the facts. But each of those people don't need to file their own affidavits, and usually would not be required to attend court to testify. Getting your own expert witness would be best of all, but don't make the mistake of hiring an expert, and then rejecting his findings.

Showing up in court asserting your rights as a father or mother, arguing that a particular plan is in your children's best interests, and having no evidence whatsoever to back you up other than your own promises, usually isn't going to cut in in the face of conflicting CAS sworn evidence.

As a lawyer who represents fathers and mothers in child protection proceedings, I firmly advocate for my client's rights, and their views of what is in their children's best interests. However, my clients need to give me evidence that permits me to sell the court on the correctness of their arguments. So as soon you as father or mother learn that CAS is showing interest in your family, you should start compiling evidence that will assist you and your children in court much later.

FOUR INSIDER TIPS TO SURVIVING A DRUG CHARGE IN CANADA

Although the media is full of talk about the imminent legalization of the possession of small amounts of marihuana in Canada, the reality is that we may still be at least a couple of years away from legislation coming into force, that growing or selling your own marihuana will probably remain offences, and that courts will continue to be clogged with those accused of possessing, selling, producing or importing a host other recreational pharmaceuticals.

Being investigated, charged or going through the court process for a drug offence can be a very stressful life event. I served for many years as a Federal Crown drug prosecutor, and now defend those being investigated for or charged with drug offences. I've trained the police on how to properly draft and execute drug search warrants and wiretaps, make drug-related arrests and take statements from those implicated in drug offence. I've even published a series of books called The Investigator's Legal Handbook related to these issues. Being well informed is your best defence to a drug charge. Here I give you the four tips you need to follow to survive a drug charge or investigation.

Tip 1 - Say Nothing other than Identifying Yourself

Don't say anything to the police, other than giving them your correct name. And if you're driving, you're going to need to produce a driver's licence, vehicle insurance and registration documents.

Don't try to talk your way out of the situation. Don't deny anything. Don't admit to anything. Don't agree to let the police search anywhere. But follow their directions and be polite to them.

Whatever you say will be used against you later. Even if you deny everything, that could later be used against you. Trust me. I've seen it all before.

Regardless of whether you're walking along the street, driving in a vehicle, or sitting at home watching television, when the police come knocking, say nothing. Follow this tip, and the police will only be left with evidence of what they find or don't find. What others say or don't say about you usually doesn't count for anything in a criminal court drug trial, unless it's a police agent or police officer who is testifying. But what you personally have told the police counts for a lot.

Don't think even if the police aren't making a recording of what you're saying, or aren't writing it down in a little black notebook, that it can't later be used against you. Say nothing. That's your right, so take full advantage of that right.

However, don't try to obstruct the police in doing their jobs. If they've got a warrant to search your house, let them get on with their job of searching. Let your lawyer later figure out if it was a valid or invalid warrant. But you don't need to point anything out to the police. Resist identifying items for the police, even if the police tell you that will save on their messing up your house.

Same thing in a vehicle - no need to hand anything over. If they're going to search your vehicle, they will search. Nothing you say or don't say will change things, as tempting as it might be to say something.

Likewise if you're walking down the street. Don't become trapped by the "have you got anything on you that you shouldn't have?" question. And its companion request: "if you do, hand it over." Many of my clients assume that by being cooperative, the police will just let the matter drop and send them on their way. But often what happens is that they've dug themselves into a self-incrimination hole and get charged with drug offences. Whereas if they had said and done nothing (other than giving their names), the police may have had no legal authority to search.

Tip 2 - Talk to a Lawyer ASAP

In some personal disputes, lawyering up early on only aggravates the dispute. But being criminally investigated or charged is a completely different situation. There, you'll want to consult a lawyer as soon as possible.

A little bit of legal advice can be a bargain in protecting your rights. That advice might mean a police investigation goes nowhere, that less serious charges are laid - for instance possession instead of possession for the purpose of trafficking - or if a court case does proceed that you haven't helped the police make the case against you.

You shouldn't wait to talk to a lawyer until you've been charged. Some drug investigations take a while, and there may be things you can do to protect your rights at an early stage of the investigation. Your lawyer might talk to the police for you to ask about the scope of their inquiries. Your lawyer might be able to work out a deal for you to avoid you getting charged with anything. Your lawyer might be able to get some charges dropped. Or your lawyer might go to court for you to get back seized money or other assets.

Tip 3 - Be Personally Informed About Drug Laws

Informing yourself in a basic sense about drug laws is the best way you can make intelligent decisions about your legal defence. There's a lot of clutter - like hundreds of years of the common law of evidence and dozens of years of constitutional rights law - that makes it seem really complicated, and for which you definitely need a lawyer. But I can sum up the basics for you quickly.

There are principally 5 types of drug offences (all under what's wordily known as the Controlled Drug and Substances Act): possession, possession for the purpose of trafficking, trafficking, production, and importation. The type of drug involved might make the penalties for any of these offences more severe, but mostly don't alter their inherent character. "Conviction" for any of them will gives you a criminal record, and could cause you a lifetime of hassles crossing the U.S. border and applying for jobs within Canada until you are able to obtain a pardon (now unpoetically called a "record suspension"). So you really, really, really want to avoid a conviction.

There are three ways to do that.

One, convince the Crown to drop the charges. Good defence lawyers are capable of doing this. It might not happen that often, but it's usually your best shot to make everything go away.

Two, plead guilty and convince a judge to give you what's known as a "discharge." It's a finding of guilt, but no conviction is entered. So if you're later asked by anyone, "have you ever been convicted of a criminal offence," you can truthfully say "no." Again, a good defence lawyer might be able to obtain this for you - but it will depend on the type of offence and type of drug you are pleading to.

Three, take your case to trial. You might have a viable defence, because the burden of proof beyond a reasonable doubt is entirely on the Crown. You have to prove nothing. The Crown has to prove knowledge and control and possibly other elements. You might even have a Charter of Rights defence if your rights were violated. There sometimes isn't much downside to taking a drug case to trial other than the legal fees if the sentence imposed after trial isn't much different than the sentence you would have received after a guilty plea. A good drug defence lawyer will not be afraid to take your case to trial so long as there is some viable defence to present.

TIP 4 - Don't Plead Guilty if You're Not Guilty

I often have clients stuck in the system. They're understandably stressed out by their drug charges hanging over their heads for months on end. They want the process over with. They have a good defence, but they can't take the waiting anymore. So they tell me, "look Gordon, I didn't do it, but I want to plead just to get it over with." But it's not ethical for any lawyer to help you with such a plea. Lying to the court is an offence. If you didn't do it, you just need to hang in there. You'll be stuck with a conviction for life, so ultimately waiting a year to have your trial day in court is worth it. Trust me, I'm a lawyer.

SMALL CLAIMS COURT OR SUPERIOR COURT OF JUSTICE: WHICH SHOULD YOU CHOOSE FOR YOUR CIVIL CLAIM IN ONTARIO?

The first - and perhaps most important - decision anyone is faced with when contemplating pursuing a civil claim against someone else is: which court should I be proceeding before? If life and the law were simple, there would only be one court that would deal with all problems.

But unfortunately as most of us have discovered by adulthood, life is never as simple as our younger selves hoped it would be. And those who need to brave the court system likewise soon discover that there are a complex multiplicity of courts and tribunals out there, any one of which might be "the place" you're supposed to go to seek a solution to your particular legal problem. Showing up at the wrong one can be like arriving at the wrong birthday party, where you're told there's no cake for the likes of you!

Although Ontario also has criminal and family courts in addition to a plethora of administrative tribunals, for the purposes of any "civil" claim the sole choices are between the Small Claims Court and the Superior Court of Justice (unless the claim is one of the few going to the Federal Court). Confusingly, the Small Claims Court is actually an arm of the Superior Court, but where "Deputy Judges" preside over a less complex procedure involving less risk for the losers and also lesser rewards for the winners.

The key things to know about the Small Claims Court are that:

  1. You can only demand damages up to $25,000. You can still bring a claim worth potentially much more than that before the Small Claims Court, but you'll be required to "abandon" the excess.

  2. You can only demand the return of property up to a value of $25,0000.

  3. You can't demand any other kind of remedy, like declaratory or injunctive relief, meaning you can't ask the court to force another person to do or not do something, or declare that something is or is not the case - like that a law is unconstitutional.

  4. You can only obtain "costs" (sometimes awarded to the winning party) of 15% of the value of all claims pending before the court, even if you spent much more on legal fees.

  5. Your legal fees charged by a lawyer will be much, much cheaper in Small Claims Court than in the Superior Court of Justice, because of the simpler and quicker procedure involved.

What this means to choosing between civil courts is that if you're definitely seeking a remedy other than money or property, you've got no choice - you're going to the Superior Court of Justice. If you're seeking money or property worth less than $25,000, then again the choice is a no brainer - you're going to the Small Claims Court.

The zone of claims where the choice gets tricky is for those worth a bit (though not a massive amount) over $25,000. My rule of thumb is that any claim worth under $40,000 should choose to go to the Small Claims Court, since you're probably going to spend at least another $15,000 in legal fees going to the Superior Court of Justice. Even claims up to $50,000 might wish to consider cutting their numbers in half to go to Small Claims.

Over $50,000, and Superior Court of Justice is likely the way to go. If you claim $100,000 or less there, you're entitled to take advantage of what's known as a "simplified procedure" - though it's still a lot more costly and time consuming than Small Claims Court procedure.

But before you settle on the Superior Court of Justice route for what you're convinced is your very valuable claim, get some legal advice about claim valuation. You might very legitimately believe that you've suffered a great injustice at the hands of the plaintiff, but the burden rests solely on you as plaintiff to present proof on a balance of probability of quantification of damages. This means proof of what you've lost, and what is a fair amount payable by the defendant to "make you whole" again.

Figuring out damages numbers is easiest when you're fighting over a thing - like a vehicle - with a well known value. Damages are more difficult to quantify for less well agreed upon numbers, like the value of a broken arm. Damages can become very difficult to put a number on when they are intangible - like damage to reputation due to defamation.

You definitely don't want to "win" after a lengthy and expensive trial, only to be awarded $1 - or any figure that is less than the amounts you've spent on pursuing the case.

HOW LANDLORDS AND TENANTS CAN SEEK JUSTICE FOR COMMERCIAL LEASING DISPUTES

Most jurisdictions have a rental board that deals with residential landlord-tenant disputes. The board has its own rules, its own forms, and its own schedules. It's meant to be accessible without lawyers to both landlords and tenants (though lawyers can certainly be helpful).

But a vast number of landlord-tenant disputes involve commercial premises. Where do those landlords or tenants go to seek justice? What is a landlord's recourse when a tenant stops paying rent or refuses to leave rented premises after a lease expires? What can a tenant do when a landlord locks him out of premises over which he holds a lease? Who ya gonna call? In Ontario the answer is: the Superior Court of Justice.

The Superior Court is always the place to go when there's no other place else you're supposed to be going legally speaking. So you don't go there for residential landlord-tenant matters, because there's already an administrative tribunal set up for that. But the only thing regulating commercial leasing is the common law of contract, plus what's known as the Commercial Tenancies Act, R.S.O. c. L.7.

That Act generally applies to all tenancies to which the Residential Tenancies Act, 2006 does not apply. Unfortunately the Commercial Tenancies Act isn't the easiest Act to read. It's got a lot of really old language in it that's never been "modernized," so that you're left with provisions like: "Every person has the like remedy by distress and impounding and selling the property distrained in cases of rents seck as in the case of rent reserved upon the lease." And no, "rents seck" isn't a typo, it comes with the Middle English "rent sek" which in turn comes from the Anglo-French "rente seque" meaning "dry rent." I highly advise you to retain a lawyer to advise you on your rights and obligations under the Act.

The Commercial Tenancies Act contains lots of useful provisions for both commercial landlords and tenants, though it's definitely not a complete code of procedure governing commercial tenancies. The gaps are filled in by the common law of contract. For landlords, there are provisions like s. 58 which provides that a tenant will owe a landlord twice the monthly rent for every month during which he illegally overholds a property beyond the expiry or termination of a lease. For tenants, there are provisions like s-s. 32(2) which permits a sub-tenant to serve a statutory declaration on a landlord who is seeking to seize tenant goods for non-payment of rent confirming that the tenant has no interest in the property of the sub-tenant, and that the sub-tenant's property therefore shouldn't be seized.

Because the Superior Court is a court of "original inherent jurisdiction," you can ask it for any remedy you think to be just. You might also have recourse to the Small Claims Court for money or property disputes under $25,000 in value involving commercial leases, but you can't get orders from that court forcing people to do or not so things - like evicting a tenant - you can only get money or property returned. So Small Claims Court has limited use in commercial lease disputes.

The key to happy commercial leasing is good legal advice (for both the landlord and the tenant) prior to signing a lease. Such advice can be a real bargain compared to the expense of going to court later to fight over whether or not the terms of the lease have been breached, and what remedies should be granted for that breach. But be assured that the Superior Court of Justice, the common law, and the Commercial Tenancies Act do provide for robust remedies for both landlord and tenants facing commercial leasing injustices.

ESTATE LITIGATION: FIVE TIPS ON HOW TO DEESCALATE FAMILY FEUDS

In the "good old days" (which often weren't so good), most of us died relatively poor. We might hopefully have been rich in life accomplishments, and family or friends, but financially speaking there often wasn't a whole lot left to divvy up among those who survived us.

With significant increases in home ownership, and especially significant rises in the equity held in those homes in Canada's major urban centres, 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 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 to do so if the legal fees would outweigh the money in dispute. But now with estates frequently running into the hundreds of thousands of dollars (or more) in value, "lawyering up" is becoming more common.

As an estate litigation and dispute settlement lawyer, I've found having some background in drafting wills and powers of attorney for clients has helped me assist families in deescalating disputes before they start, and managing disputes if they are already ongoing. Here I offer you five basic but key tips to deescalating actual or potential estate family feuds.

Tip #1: Picking the right executor for your will may be more important than picking the right beneficiaries. I find people often spend months of time debating who should or should not receive that prized china tea cup in a will, but spend about five minutes (literally) determining who should act as executor and estate trustee. Your executor is THE key player who will determine whether your estate is distributed hassle free, or with acrimony and lawyer involvement. Picking someone who is relatively impartial (and ideally not a major beneficiary, but who is compensated for his or her effort), and has people skills, is the usually the best strategy.

Tip #2: Don't 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 for one of them challenging the will. You definitely don't need to treat everyone equally (at least under Canadian common law, as 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.

Tip #3: Once a dispute has started, quickly get legal advice but try to prevent it going to court. A lawyer's opinion is a bargain compared to the hassle and expense it can later save you. However, dragging a case (or being dragged) into court is never a bargain, and will take at least months and possibly years to resolve. Once that litigation freight train starts heading down the track, it can be very difficult to apply the brakes.

Tip #4: If you are in court, keep open a dialogue with the other side(s). While this tip might appear obvious, my experience is that many assume that once a matter is in court, they should just "let the court sort it out" and stop speaking to the other parties. It's unlikely a court will actually be able to sort it out in a definitive way - a court might clarify the issues, and resolve some of them, but definitive resolution could require many, many years since even if you are successful at trial, an appeal is possible, so keep the lines of communication open.

Tip #5: If you are involved in a contested court hearing, ensure you have solid evidence to support your position beyond just your oral testimony. It's reasonable to assume that judges want to make "just" and "fair" decisions, but they can only do so based on the law and evidence before them. Even if the law is on your side (for example, that a properly executed will is valid), prepare to back up your position with lots collateral evidence. Judges love documents - as they're less likely to lie than witnesses - so try to produce some supporting your position. Other witnesses backing up testimony will also help. You might also need expert witnesses. You will make your legal bill lower and greatly increase of your chances of success in court by helping you lawyer locate the documents and witnesses you need to present a compelling case.

New Website, New Blog

Now that you're just getting over the winter blahs, surely you're ready for a strong dose of the new Aubry Campbell MacLean (ACM) Blog! Trouble sleeping? Need something to distract you from the cat biting your leg? Well we've got the solution!

The Aubry Campbell MacLean blog will potentially feature contributions from all our lawyers and students, explaining the law in simple (but not simplistic), easy to understand terms.

I'll keep writing The Barrister Brief Blog which will continue to focus on litigation and dispute resolution dos and don'ts, but a lot of those posts will now also appear here. However, you'll also now get a much greater dose of solicitor legal dos and don'ts for things like real estate deals, wills, and business agreements thanks to my colleagues who practice in those areas. Welcome, and happy reading. Videos will show up in the future (I promise, I've even already ordered the studio lighting).