Why Business Owners & Employees are at Risk of Being Accused of Fraud: Top 5 Tips on How to Protect Yourself Against Career & Life Ruining Criminal Charges

Many of us think wrongly that there is a stark distinction between the civil action world and the criminal charge world. That a falling out between business partners, or between employer and employees, will at worst lead to a civil lawsuit, or complaint to the labour board, so long as no one tips over the edge into assault or threat of violence. Not true. 

Business partner and employer accusations of criminal conduct by former partners or employees are a lot more common that you might think. Unfortunately, such accusations are sometimes made in an attempt to gain a strategic advantage in a civil settlement. 

Criminal Fraud Is Very Close to Civil Fraud or Deceit

The criminal offence of fraud is very similar to the civil torts of fraud or deceit. There’s a higher standard of proof for the criminal charge, but also far more career ending, life destroying consequences upon conviction.

Fraud is very broadly defined at section 380 of the Criminal Code: "Everyone who, by deceit, falsehood, or other fraudulent means ... defrauds the public or any person, whether ascertained or not, of any property, money, or any valuable security or any service, is guilty …” Note that even public frauds like tax evasion could be criminally charged. Criminal Code fraud punishment ranges up to 14 years imprisonment, making this one of the most serious Canadian offences on the books. By comparison, even the most serious of sexual assaults can only attract a 10 year term of imprisonment unless the victim is under 16 years of age, in which case the potential penalty is still only the same as fraud. 

Accidentally use that employer gas card to fill your own car, and not be believed that it was an accident? Or use it with the permission of your employer, who then “forgets” you got permission? Or maybe just use it for $30 of gas because you didn't think anyone would notice. Criminal charge. Or professional misconduct charge. Think it can’t happen? Ask the Canadian police officer who was prosecuted and fired for that $30 of gas on the corporate card (and I do mean $30, and I have a copy of the case to prove it). 

Give yourself a $2 an hour raise because your employer told you to. And not have the employer sign anything confirming that raise, which only becomes an issue years later when there's a falling out? Criminal charge. 

Bad falling out with your business partners? They claim you took more than your fair share of the profits? Criminal charge. 

As a lawyer who has regularly prosecuted, investigated, and defended all manner of frauds, here are my top five tips for protecting yourself against unjustified fraud allegations. 

1. Get It In Writing

Courts love paper (or the electronic equivalent), and distrust words. But just claiming verbally after the fact that you had an agreement with someone may carry little weight if that claimed agreement appears to be self-serving, and others contradict your recollection of any agreement. 

Email actually helps a lot with getting it in writing, because courts seems consistently in my experience (and I go to court a lot) to take email as gospel, absent proof to the contrary. No signature. No letterhead. No proof the recipient event read it. Or the sender even sent it for that matter. Courts don't seem to care, unless someone directly claims the documents is itself fraudulent. Text and social media messages might be accorded similar weight by a court. 

In the (not so) good old days, to ask someone for a typed or even handwritten note, with their signature at the bottom, was often a bit over the top in order to prove an informal agreement. Thus the electronic world, while perhaps killing off the art of letter writing, has massively expanded the use of the written word. Why phone someone and then try to clumsily record the scratchy conversation, when you can just exchange emails? 

This get it in writing principle applies as much to complex business partnership profit sharing agreements, as it does to using the company gas card to fill up you car. If it’s in writing, you're at least sort of covered. Verbal, and it's your word against whoever later disagrees with you.

The get it in writing principle also applies to your own record keeping, where you should preserve all records of communications, and make detailed notes. While contemporaneous notes aren’t as good as actual exchanges of communications because they don’t give other parties the opportunity to correct misinterpretations, they can still be very useful if you record conversations in ways that are later difficult to deny. 

2. Say Nothing If There are Allegations

If you do get accused of something possibly fraudulent, say nothing. Don’t try to get into a complex web of admissions and denials by yourself. No, “oh yeah, I took $100, just not $20,000.” By admitting that, you’re much more likely to get pinned for the entire amount. 

As obvious as this say nothing principle might seem, I’ve found there is an almost unstoppable human impulse to explain things. To “set the record” straight. Trust me, nothing you say will help you. 

This say nothing principle applies as broadly as not settling any kind of civil law suit if there remains a pending threat of criminal action. Even if a proposed agreements says the settlement will be confidential, don’t believe it. It still might be held against you. 

3. Don’t Believe the Admit It & We Won’t Report It to Police Claim

On my long list of head shaking “that’s professional misconduct, you know” sighs, is the lawyer ethics rule that you can’t threaten to report someone to the police in order to gain a civil advantage. Yet I see it happen over and over again. 

Just as the police need to exercise some charging discretion when disputes appear to be more civil than criminal in nature, my colleagues in the legal profession likewise sometimes confuse the civil with the criminal, sending my clients threatening letters (which is a legitimate lawyer speciality if only civil consequences are sought), that threaten criminal consequences if my clients don’t do whatever civilly is being claimed. They seem to have missed that chapter in the bar ad materials teaching that they are explicitly prevented from doing this, worded as follows in the Law Society of Ontario’s Rules of Professional Conduct (I think most other law societies have similar prohibitions):

3.2-5 A lawyer shall not, in an attempt to gain a benefit for a client, threaten, or advise a client to threaten, without reasonable and lawful justification:

(a) to initiate or proceed with a charge for an offence, including an offence under

(i) the Criminal Code or any other statute of Canada; 

(ii) a statute of a province or territory of Canada; or 

(iii) a municipal by-law; or

(b) to make a complaint to a regulatory authority.

[1] It is an abuse of the process of a court or, ordinarily, a regulatory authority to threaten to make or advance a charge or complaint in order to secure the satisfaction of a private grievance. Even if a client has a legitimate entitlement to be paid monies, threats to take penal action are not appropriate.

So if you get a letter like this, or are even verbally told by a partner or employer that if you just settle civilly they won't report you to the police, don’t believe it. The civil has nothing to do with the criminal. It is the Crown that controls the investigation and prosecution of crime in Canada. Victims' wishes are not paramount (even if they perhaps should be). So if the police hear through any source about a fraud, charges might be the result, even if you were promised otherwise by the victim. And those charges won’t be an abuse of process, unless you explicitly cut some kind of deal with the Crown. 

4. Fix Anything that Might be Perceived as Fraudulent

If you do accidentally use that corporate gas card to fill up your own car, move as quickly as you can to fix the issue. Criminal fraud requires “intent,” meaning the Crown would have to prove more than just negligence on your part in using a card (or diverting hundreds of thousands of dollars in director bonuses for that matter). 

So if you discover a mistake, or upon further reflection come to believe that an action you took might later be perceived by others to possibly be fraudulent, don’t simply hope that no one notices it. Once you’re challenged on it, it will usually be too late to fix. Rather, move proactively to reimburse your employer for the gas money. Or to pass a board of directors or shareholder resolution to authorize those bonuses. 

5. Hire a lawyer

Lawyers are the best value when they’re used in a preventive medicine kind of way to head off court proceedings, rather than fight those proceedings (civil or criminal) once they’ve commenced. A few hours of a lawyer’s time might be able to kill off any hint of fraud in advance, whereas once the F(raud) word has made its way into the court system, it could take many dozens or even hundreds of hours of lawyer time to erase it. 

The purpose of the lawyer is not just to provide advice, but also to actively engage with the potential accusers to clarify what the evidence really amounts to, and whether the client’s response can put any allegations to rest. 

Gordon S. Campbell assists with the investigation, civil prosecution, and civil & criminal defence of business and other fraud throughout Ontario. He has litigated fraud-related cases as high as the Supreme Court of Canada. Learn more at acmlawfirm.ca, proconductlaw.com and defenceeast.com. 

Why You Need to Resist the Urge to "Just Get it Over With": Top 5 Things to Consider When Thinking About Pleading Guilty to Any Kind of Charge

Four teens are in a car headed down the 401 from Toronto for a fun weekend in Montreal. The driver's a little over the speed limit - maybe more than a little over. And reasonably enough they get stopped on the highway for a traffic offence. A single marihuana joint is noted by the stopping officer sitting on the vehicle's centre console between driver and front seat passenger. All four are charged with a criminal offence under the Controlled Drugs and Substances Act. What should each of them do? (And no, this is not invented, as defence counsel I've dealt with multiple cases identical to these facts). 

I'm often asked by my clients: "should I plead guilty? What you do think I should do?" These questions are as equally applicable to serious criminal allegations like narcotics trafficking as they are to regulatory offences like highway traffic violations.

Unfortunately, a guilty plea is such a weighty personal decision, potentially having such great ramifications for my clients' lives, that I can't give them direct answers to those kinds of questions. As much as I would like to. But there are a few ways I can help them come to their own most important of personal decisions. 

The best I can do is explain to them: (1) all of their options (sometimes there are more options than simply plead or don't plead); (2) the likely consequences of their options, and (3) that usually they don't have to make an instantaneous decision about pleading. They can take a few days or weeks to talk it over with friends and family, and ask me follow up questions. The last thing I want for any of my clients is to later regret whatever decisions they arrive at. 

There are five primary factors I tell my clients to consider when deciding whether or not to plead.

1. Did you actually commit an offence act? 

For clients who are completely innocent of any wrongdoing, I can't ethically help them plead guilty to things they didn't do. Even though they might be offered good plea "deals" and even though those deals would get their matters out of the way so that they could move on with lives. 

I grew up in a naive bubble thinking the innocent could never be charged. But I've since learned there can be all sorts of factors contributing to who does or doesn't get charged. 

But there's some nuance to this question of whether they actually "did it" from a legal perspective. Even if you didn't do exactly what is alleged factually or legally against you, you might have still committed some kind of other offence, and so you might still be able to properly plead to something. Perhaps just not what you are charged with. Criminal defence lawyers can occasionally magically transform one charge into another charge with the cooperation of the Crown Prosecutor. 

But for others, like the four teens in the car, is it really plausible they were all jointly in possession of one joint?

2. Can you live with likely consequences of a guilty plea?

If the consequence of a plea will be a criminal record, and you absolutely can't live with that - perhaps because it would ruin your career - then you probably won't want to plead. Likewise if there will be a consequence like a two year driving suspension that you can't live with, again you'll want to think twice before pleading.

But if the consequences won't ruin your life - maybe you'll be getting a discharge that avoids a criminal record, or receive a fine that avoids jail - that a plea might be a good idea. But only if you're actually guilty. 

3. Can you financially & emotionally afford to go to trial? 

The answer to this question might depend on the kind of charges you are facing. Going to trial on an impaired driving charge might only cost you a few thousand dollars in legal fees, and the time waiting for a trial date could be under a year. However, going to trial on a drug conspiracy might involved tens of thousands of dollars in legal fees, and many years of legal proceedings as the case drags through first a preliminary inquiry and then possibly a multi-week trial.

Some of my clients just "want to get it over with" and move on with their lives. Whereas others are willing to be patient, and spend a year or more waiting to see how things play out. 

Whether a client gets bail is perhaps the most significant determining factor for continuing to fight a case through to trial. I've had clients spend many years on bail, still able to work and see their families, so long as they comply with their bail conditions. Whereas if you lose your bail hearing, and then possibly lose a bail review, you could be looking a spending far longer behind bars waiting for trial than you would ever spend imprisoned after losing a trial. 

4. Is the sentence after trial likely to be much worse than the sentence on a plea? 

The rule of thumb is that a guilty plea will save you about 1/3 off your sentence. But sometimes the difference may be a lot more or less. Like the difference between getting a criminal record, and not getting a criminal record.

Thus you and your lawyer will need to carefully evaluate the "bad outcome" risk of going to trial. For example, upon a plea to a first offence impaired driving the accused will usually receive a fine. After trial, it will usually also be a fine. Thus there is not much risk in proceeding to trial (although it could effectively result in a longer period of driving prohibition). But if the Crown will take a fine on a plea, and will want three months in jail after trial, then that is a huge difference. 

5. What are the chances of winning a trial? 

This is a question to which your lawyer might not be able to give you precise odds, but she or he should be able to tell you in general terms whether you have a defence to present. Sometimes the defence might be very "technical" (like that an officer wasn't properly qualified to administer a particular test), sometimes it might be based on a violation of your "rights" (like that there was no legal power to search you car), and at other times it could simply be based on your testimony needing to be believed at trial that you "didn't do it." Your lawyer should be able to tell you if you have good or bad prospects of success at trial, based on the evidence the Crown plans to present against you, and the legal defences you'll be able to raise. 

But ultimately any trial is a gamble, for both sides. Because the criminal standard of proof of "beyond a reasonable doubt" is so high, no matter what you're accused of, and no matter how overwhelming the evidence against you, you'll probably always stand a chance at trial. Memories fade. Evidence is lost. Judges are humans who can come to different opinions faced with the same evidence. 

For any these top 5 considerations, the key point to remember is that you should get some legal advice prior to making the decision to plead or not plead. That advice might be from your own privately retained lawyer, from a lawyer paid by legal aid, or from duty counsel in the courthouse. Where you get the advice is less important than the fact that you need such advice prior to pleading or setting a trial date. Information is power here. The last thing you should be doing is pleading to something you didn't do, and to which you have a strong defence, just to get it over with, or because the system seems stacked against you.

Gordon S. Campbell is a criminal and regulatory defence lawyer, who served as a Federal Crown Prosecutor on trials and appeals throughout Canada up to the level of the Supreme Court of Canada. He's the author of The Investigator's Legal Handbook (Carswell 2006; 2nd ed 2014) and Le manuel juridique de l'enquêteur (Yvon Blais, 2010) series of books. Learn more at defenceeast.com. 

Workplace Harassment: Six Things You Can Do To Address It

The #MeToo movement has sparked conversations on and off social media about gender equality, violence against women, consent and bullying. Power imbalance has existed since the dawn of time. But as our societies become more modern and complex, the issues of power and inequality are far from being resolved. It seems that power is being exercised unfairly in every possible setting: in romantic relationships, in social functions, but also in the workplace. This begs the questions: what can employees do to address and prevent harassment in the office? Before this question can be answered, it is necessary to understand what actually constitutes harassment.

What is harassment?

Ontario legislation defines workplace harassment as vexatious comments or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. This includes offensive, embarrassing, humiliating and demeaning words or actions against a worker or a group of workers. Common examples of harassment are:

• making remarks, jokes or innuendoes that are meant to ridicule or intimidate;
• circulating digital or hard copies of inappropriate material; or
• calling someone or sending e-mails excessively.

Some behaviours, while frowned upon by some, do not necessarily fall under the definition of harassment. For instance, reprimand by a manager towards employees, heated discussions and debates or conveying indifference about someone or something would typically not be viewed as harassment. Most occurrences of harassment involve repetition of wrongful actions over some time. However, it is possible that a single event rise up to the status of harassment, especially if it quite egregious and damaging to the person targeted by the wrongful conduct. There is a fine line between being harassed and just being overly sensitive. When in doubt, get some legal advice to know whether or not your issues at work need to be addressed in a more formal manner.

What Can Employees Do To Address Workplace Harassment?

1. Learn and Follow Internal Workplace Policies

Employers have a duty to create and implement workplace harassment policies, and to review them annually. Employers must also have procedures in place allowing employees to place complaints and report incidents about harassment instances without fear of reprisal.

As an employee, it is important to take the time to review these policies and abide by them. If you have experienced harassment, do not wait for things to get better on their own – you should address the problem right away. Go talk to your direct supervisor and any human resource person about the incident in question. If you are a unionized employee, discuss with your union representative as soon as possible.

2. Keep Records of the Incident

Take notes of the words that were said to you or the behaviour geared towards you. If there were other individuals present during the harassment, write their names down. Make sure you keep track of the location and time where the incident took place and whether it actually occurred at work. If disturbing material was sent to you, make sure you keep a copy to support your allegations. These records will be of vital importance to discuss and support your allegations of harassment.

3. Attend Any Programs Available To You

Most workplaces will have certain programs to help employees who have been harassed. Find out whether there is a possibility for you to receive any assistance in a confidential manner. Do not be shy to be accommodated. For instance, it can be beneficial for a worker who experiences harassment by a manager to work in another department or at different hours if possible.

4. Call the Police

In some cases, instances of harassment amount to criminal behaviour. This can be the case where the unwelcomed behaviour comes from a person in a position of power. Generally, it is crucial to have the police involved in cases of bodily harm, unwelcomed touching and stalking. If a criminal investigation ensues, make sure the person being investigated is not allowed to contact you directly or indirectly.

5. Place a Complaint Before the Human Rights Tribunal

The Ontario Human Rights’ Tribunal deals with complaints based on discrimination and harassment. If internal remedies have been unsuccessful, employees may try to resolve their issues by having their dispute handled by an administrative tribunal.

The process involves making a written complaint, reviewing a response, attending a mediation session and finally having the matter heard before an impartial decision maker. Employees who believe they are being subject to harassment should not delay in bringing their claim forward. The Tribunal may refuse to hear matters where the events occurred over a year before the claim was brought before it.

6. Be Willing to Walk Away

As difficult as it is to say, not all matters can be resolved amicably. While employees can certainly take measures to prevent and address harassment, unfortunately, there are times where the harasser refuses to stop engaging in vexatious conduct. If an employee has exhausted all his or her avenues and is still being harassed, sometimes, the best thing to do is to walk away from the situation altogether and seek employment elsewhere. In that case, it can be helpful for the employee to obtain legal advice to negotiate a fair severance package prior to his or her departure.

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

Why a Lawyer May be a Waste of Money: Top 3 Questions to Ask Yourself to Figure Out if You Really Need a Lawyer

It might be empowering to yell at your adversaries: "Tell it to my lawyer!" or "You'll be hearing from my lawyer!" or best of all: "My lawyer's more expensive than your lawyer!" (yes, I've actually had someone say this in my presence). But the reality is not everyone needs a lawyer.

There are many life events where lawyers simply don't add any value, or risk destroying value, or the cost of a lawyer outweighs the value of the thing in question. Many minor (and even some major) interpersonal disputes are only worsened by the early involvement of lawyers. Positions harden. Direct communication is no longer possible. Total victory at all costs becomes the sole goal. And the financial cost of that total victory quickly outstrips the objective value of the thing being fought over.

Resolving neighbour disputes, family disputes, or workplace disputes are often best accomplished without the initial involvement of lawyers. But - and this is a big BUT - if you're then planning to commit compromises you’ve worked out to paper in a binding legal contract for all time kind of way, you should definitely be thinking about a lawyer to tidy things up. 

Lawyers involved in the middle of messy disputes can get expensive, because of all the time involved cleaning up the mess. While if you’ve already consigned your mess to the trash, lawyers are relatively affordable garbage people to take out that trash. 

By contrast, when your goal is to create a legally binding promise where there currently is no dispute, you want a lawyer involved from the get go. You’ll find good value in having a lawyer sort out from the start your real estate transaction, will or power of attorney, or corporate-commerical business deal. Don’t involve a lawyer early, the parties later have a falling out, and you’re likely to wind up with exactly the kind of mess we were just talking about when lawyer involvement gets expensive. The early lawyer involvement creates legal certainty, thus minimizing later legal disputes.

Occasionally you will have a significant life problem, but it won’t be a legal problem with a legal solution. You might simply not get on with your neighbour, or your coworker, or your spouse. A lawyer can’t fix all human relationship problems. The lawyer can only set down in writing any fixes you have worked out that might be legally enforceable (permission for the neighbour to walk across your land, agreement of the co-worker to work different hours, agreement of the spouse through a marriage contract as to how assets will be split upon dissolution), or force a legal solution where the issues are justiciable (meaning a court can make a decision on them): stop the neighbour from trespassing on your land, but not stop the neighbour from being nasty to you; stop the co-worker from harassing you, but not stop the co-worker from working in the same building; decide how the marital property should be split, but not stop the marraige from breaking up.

Really lawyers are best employed when: (1) you have an important informal agreement - real estate or business sale or family separation - that you need reduced to a binding contract that can later be enforced; (2) you’ve attempted but failed to reach an informal agreement - dissolution of business partnership or land co-ownership or marriage - and now need to force the issue through lawyer-facilitated negotiation and possibly court action; (3) you need to create future legal certainty about property, yourself, your business or your family, such as through drafting a will, power of attorney, domestic contract, or incorporation of a company; (4) you are dealing with the government on issues of great importance to your future - immigration & citizenship, tax assessments, responding to criminal or regulatory charges, asserting indigenous or environmental rights - where the price of failure is high; (5) the law requires you to have a lawyer. 

There are three prime questions to ask yourself in determining whether you need a lawyer. 

1. What Are the Likely Lawyer Fees as Compared to the Price of Failure? 

Some things like child custody or personal freedom in staying out of jail may be priceless. Others like immigrating or obtaining citizenship in the country of your dreams, or saving hundreds of thousands of dollars on your tax bill, may have a huge personal value. Getting compensated for the tree your neighbour accidentally cut down on your property might have a lower value. 

A cost-benefit analysis is important to any decision to hire a lawyer. There are lawyers out there who don’t like to talk money. But really that is the key driver for many of our decisions in life. Deciding to hire a lawyer means giving up other things, so what you’re getting better be worth it.

So ask about fees up front. The lawyer might fairly tell you, “oh, that needs to be hourly.” And you then might be a bit put off by what seems like a high hourly fee. But if the work only takes a couple of hours, the fees could be less than that last major plumbing problem you had at home.

Ideally, you’ll be quoted a block fee. Some work can be predicted pretty closely as to effort, like appeals or drafting wills. Whereas other work will be dependent on the unpredictable actions of the opposing party, like family law: the other side consenting to what is being sought will be relatively inexpensive, whereas fighting you at every step will lead to significant expense. 

Generally fees for dealing with government - like on immigration applications or criminal charges - will be lower and more certain because government responds in relatively predictable ways. Fees for dealing with private parties - like in family court or for commercial disputes - will be higher and less certain because those parties will be unpredictable (they might fight a lot or not at all). Fees where there is no dispute at all (real estate transfer, incorporation, will drafting) will be lowest of all. 

2. Will Not Hiring a Lawyer Early Lead to Higher Legal Fees Later?

Doing your own immigration or citizenship application, fighting by yourself with the Canada Revenue Agency, or drafting up your own family separation agreement may all seem initially like a good budget idea. You might be strapped for cash, and understably need to prioritize expenses. So you figure you’re more than capable of filling out a few forms, or writing a few letters, or drafting up a domestic contract. 

And until you get that immigration rejection letter, or tax reassessment for $100,000, or wind up in a nasty family court fight, the DIY route might seem sensible. But the problem is you won’t be able to assess whether it was really a good idea until it’s too late. And at that point you could be forced to hire a lawyer to seek a judicial review for the rejection, go to Tax Court to appeal the assessment, or go to Family Court to enforce a skimpy settlement agreement, all at far, far greater cost than would have been the case to originally hire a lawyer to fill out that application, negotiate with the government, or commit your informal family settlement to writing in a binding way that will stand up in court. 

Not every government or family interaction justifies a lawyer. So you’ll need to carefully weigh the price of failure on a case by case basis compared to the early and later legal cost. 

3. Does the Law Require Me to Have a Lawyer?

Sometimes you have no choice but to hire a lawyer, because the politicians in drafting the laws have decided to require it. These situations are rare. Transferring real estate from one party to another in Ontario is one example of non-litigious solicitor-work where lawyers are mandatory. Civilly suing or being sued in Ontario's Superior Courts or the Federal Court under the name of a Corporation is another example (unless you bring a motion before the court for self-representation). The theory seems to be that if you have enough money to be buying or selling real estate, or to have a corporation, you have enough money to hire a lawyer. 

In all other legal situations, lawyers are optional. Traffic court. Small claims. Last will and testament. You need to weigh in each case, what is success worth to you? If you’re fighting over a $150 dollar traffic ticket, and the sole price of losing is $150, then a lawyer probably won’t be worth it. If you’ve unfortunately already racked up a few demerit points, and losing means forfeiting your driver’s licence, then probably a lawyer is worth it. 

Gordon S. Campbell is the Managing Lawyer of Aubry Campbell MacLean. Learn more at www.acmlawfirm.ca. 

How Much Does a Divorce Cost in Ontario? Five Winning Tips for Saving Money on a Family Lawyer

There are essentially two types of divorce in Ontario: the really cheap divorce, and the really expensive divorce. The distinction between the two is less obvious than it initially seems.

If you ask everyone up front what kind of divorce they would like, they’ll invariably tell you the really cheap divorce. But they’ll then proceed to take actions (or inaction) which lead down a path to the really expensive divorce.

Divorce is really cheap - relatively speaking - if you aren’t planning to fight with your spouse over the dissolution of your marriage. You agree on property division. You agree on spousal support (or lack thereof). You agree on child custody and support. You then commit those agreements to paper, file a few documents with the court, and within 12 moths of separation you’re done. Magic. Divorce. And very low legal fees. 

Divorce can become very expensive if you can’t agree on all of those things with your ex, and one or both of you decide to go to court to let a judge decide on what’s fair. The irony is that an experienced family lawyer may have already told you (or your spouse) what the likely outcome of going to court will be, but you (or your spouse) believe you can do better. 

Of course one of the two parties to a divorce may be very reasonable, and still wind up with an expensive divorce because the other spouse isn’t reasonable. So in essence each of you need to pick the cheap divorce route, or you may default to the expensive route. 

Family law is one of the simpler areas of law in that it’s relatively new and has lots of written modern legislation governing it, rather than old dusty laws whose meaning no one can figure out. Family law is mostly just based on fairness (like splitting most property acquired during the marriage 50-50 and perhaps paying spousal support if there are significant income inequities), and best interests of the child.

So what’s the range of “really cheap” to “really expensive?” On the low end, under $5000 for a separation agreement and divorce. You might find it even cheaper than that, but remember that all lawyers have to sell is time, so the less you pay, the less time a lawyer will be spending negotiating and drafting your agreement, and making sure every T is crossed and I is dotted.

On the high end, really expensive means somewhere between $25,000 and $250,000! Crazy, eh? I’m not saying that most court-based divorces get to the quarter million mark. But more do than you might think if there are pre-trial motions, possibly interlocutory appeals, a lengthy trial, and then an appeal of that trial result. 

You can do the math for yourself. Take your lawyer’s hourly rate. Multiply by eight or so to get a daily rate. 

Multiply that number by the likely number of trial days required for a fully contested trial on all issues. Then further add the number of pre-trial case conference and settlement conference half-days that are likely. Then add some days for possible pre-trial motions. And also perhaps add time for an interlocutory (temporary) order appeal. And maybe a final order appeal.

Then take all those court days with lawyer time costs, and multiply by two or three, as prep time for court - all those court forms, affidavits, factums of legal argument, case conference briefs, books of authorities, correspondence to opposing counsel and the court, settlement negotiations with opposing counsel, trial witness and other evidence preparation - will likely take at least twice as long (as sometimes three times as long) as any court days they are linked to. So bet on two to three days of prep for any court day.

There, you’ve now got your $25,000 to $250,000 figure. 

So what are the tips for saving yourself lots of money on a family lawyer?

1. DO EVERYTHING HUMANLY POSSIBLE TO KEEP YOUR CASE OUT OF COURT

While many divorcing spouses are focussed on the "big three" of property split, support, and custody, really it is the "big four" as legal costs to get to the optimal position on the big three is an equally important factor. 

Think you’re getting a bit of the short stick on custody conditions? Or on support? Or on property split? Ask your lawyer to take another shot at negotiations. Might only take another couple of hours of time. If that fails, think long and hard over whether court is worth it. 

Being told you’ll only see your child every second weekend, when you think alternating custody weeks 50-50 is fair, may be worth going to war over in court. But be sure you have the resources for that war. Not getting the used Buick - or perhaps the even newer Mercedes - you think you have the right to? Probably not worth it. 

2. BE ORGANIZED AND FIGURE OUT YOUR BOTTOM LINE BEFORE YOU MEET YOUR LAWYER

Figure out before you see a lawyer the details of what you believe to be fair on property division, support and custody. Don’t be vague, you need to be very, very specific. And bring lots of documents with you to your first lawyer meeting. Ideally, drop off those documents before the meeting, as that will make the first meeting more efficient. Boxes of documents wouldn’t overdo it. Lawyers are good at quickly scanning through reams of documents, but burn through through lots of time if they have to pull every small fact out of a client. 

Lawyers can quickly run up a bill if you are constantly being asked for new or missing documents. On your part, demand a required document list up front from the lawyer so you can pull everything together in one go. If you do wind up in court, documents will often be far more compelling proof than any oral testimony or sworn affidavit, because documents are independent evidence, often pre-dating the marital split. 

3. DON'T THINK IT'S A GOOD IDEA TO INITIATE LITIGATION JUST TO SCARE THE OTHER SIDE

Attempting to bluff your way into a more favourable settlement by starting a family court action, without the resources or resolve to follow through on it, is like pulling out that .357 Magnum Revolver from your belt, with the safety off, just because you intend to waive it around a bit to scare someone. We all know where that leads. Same with going to court as a bluff.

4. IF YOU DO WIND UP IN COURT, RACE TO THE FINISH LINE AS FAST AS YOU CAN

Time truly is money in the legal world. Three days in court costs 1/3 of nine days in court. So do your best to avoid multiple case conferences and lengthy trials. 

Some courts will try to trap you in the "never-ending case conference," in order to avoid you eating up court trial time. Don’t let the court do that to you. 

Push for a single settlement conference. Try to expedite any trial management conference. Try to do as much of the trial as possible on paper rather than through live witnesses unless credibility is a huge issue.

Ultimately it’s the court calling the procedural shots, but experienced lawyers know how to pick the right passage to shoot those court rapids, and not get hung up on the judicial rocks. 

5. DON’T TRY TO DO ANY OF THIS WITHOUT A LAWYER’S HELP 

Yes, I know lawyers are expensive. And I know my emphasis above on the relative simplicity of family law principles might even encourage you to believe that you can figure out the underlying theory. And you absolutely can.

But the problem is that you won’t be able to grasp the strategy and tactics required to get a good result in a timely manner before running through the process a few times. Lawyers often have the benefit of having had hundreds of clients they’ve run through the system. Doing it yourself, you would need to figure out how to get it right the first time. And that's just not possible. 

I’m often consulted on family law appeals to the Ontario’s Divisional Court or Court of Appeal (appeals are one of my “things”), by intelligent hard working people who tried to navigate the family court process themselves, often against a spouse who had a lawyer. The results can only be described as disastrous. Time and time again. The system shouldn’t work this way. I know that. But it does. 

Loss of child custody. Loss of $150,000 in family assets because of miscalculations on net family property. Ordered payments of spousal support when in fact support payments should have flowed the opposite way. I’ve seen all of that. 

I get that often these good people started out with lawyers, and dropped the lawyers for financial reasons, being left to soldier on by themselves. But when they came to me for an appeal, they were faced with much larger legal bills than they might have originally incurred in attempting to keep on their trial lawyers, or in hiring a trial lawyer in the first place. Everyone needs to be aware that the best shot you'll ever have at a fair result is at trial, not on appeal. 

So among your possibilities of getting legal help make sure your consider: (1) apply for legal aid, it never hurts to ask (though if you have a well paying job, you won’t get it); (2) budget for significant legal fees, and carefully assess your ability to borrow for those fees, as running out of money half way can be the worst scenario of all; (3) talk to lawyers who might be able to offer "unbundled" legal services, which sometimes includes acting as a “coach” - it’s a newer concept, and may produce mixed results at best if you’re forced to go to court by yourself armed only with a little bit of advice, but it's better than nothing; (4) carefully evaluate lawyers from the start of your case, so that you make an informed retainer choice, and just don’t grab anyone who might be available. You don’t want to wind up in the position of having paid a lawyer a lot of money to help you, and then have a falling out with that lawyer mid-case causing you to need to switch lawyers, and possibly being stuck in lawyer limbo for weeks or months while you try to find a replacement. 

Viewing each family law choice through the "really cheap divorce" lens is necessary in order to truly understand how much a divorce really costs in Ontario (or elsewhere). 

Gordon S. Campbell is a Family Law Barrister practicing throughout Ontario. Lean more at www.nofearfamilylaw.com. 

Trois raisons pour lesquelles votre demande d'asile à titre de réfugié au Canada sera refusée

Le Canada a été marqué par une arrivée accentuée de migrants de divers pays au cours de l’année 2017. Cette vague de nouveaux arrivés s’est surtout fait ressentir dans les provinces du Québec et de l’Ontario. Selon les dernières données divulguées par le ministère de l’Immigration, Réfugiés et Citoyenneté Canada, plus de 45 000 personnes se seraient présentées par voie terrestre, aérienne ou maritime pour demander l’asile au Canada. Parmi ces personnes, certains ont été interceptés par les agents de la Gendarmerie royale du Canada en raison de leur entrée irrégulière sur le territoire canadien.

En raison du volume des dossiers, plusieurs demandeurs d’asile demeurent toujours dans l’attente d’une audience devant la Commission de l’immigration et du statut de réfugié (CISR) pour recevoir une réponse définitive relativement à leur demande. Alors que le délai d’attente est habituellement de 30 à 60 jours, il n’est pas hors du commun de nos jours que les demandes d’asile déposées pendant l’été ou l’automne 2017 soient traitées après plus de six mois.

Ces délais peuvent paraître excessivement longs pour ceux et celles qui cherchent à être reconnu comme réfugiés au Canada, notamment lorsqu’on apprend qu’une grande majorité des dossiers traités par la CISR sont rejetés. Déposer une demande d’asile ne se résume pas tout simplement à remplir un formulaire et se présenter à une audience. La CISR tient compte de plusieurs facteurs avant de rendre une décision sur la recevabilité et le bien-fondé d’une demande d’asile. Cet article peut vous mettre sur le droit chemin quant aux erreurs à éviter lors du dépôt d’une demande d’asile au Canada.

1. Votre demande d’asile n’est pas fondée sur des motifs valables

Un « réfugié » au sens de la Convention

Selon la Loi sur l’immigration et la protection des réfugiés, LC 2001, ch 27, pour être considéré comme un réfugié, il faut satisfaire les critères suivants :

• se trouver à l’extérieur de son pays d’origine ou du pays où l’on réside habituellement au moment de la demande; et

• avoir une sincère crainte de persécution en raison de sa race, sa religion, son opinion politique, sa nationalité, son appartenance à un groupe social ou son orientation sexuelle ou encore toute combinaison des motifs précités.

S’il n’existe aucun élément qui indique que le demandeur d’asile a une crainte sincère pour un motif de persécution valable, la demande d’asile sera jugée irrecevable d’office. Par exemple, la difficulté économique et la commission d’actes violents généraux ne sont habituellement pas considérés comme des motifs valables pour demander l’asile au Canada.

Les personnes à protéger peuvent aussi obtenir le statut de réfugié

En outre, il est aussi possible d’obtenir le statut de réfugié pour les personnes à protéger dans les cas suivants :

• le demandeur risque d’être torturé s’il retourne dans son pays d’origine ou le pays où il réside habituellement;

• la vie du demandeur risque d’être menacée s’il retourne dans son pays d’origine ou le pays où il réside habituellement; ou

• le demandeur risque de subir des traitements cruels ou inusités s’il retourne dans son pays d’origine ou le pays où il réside habituellement.

Bien entendu, cette crainte doit être fondée sur une croyance sincère et honnête. À cet effet, le demandeur d’asile doit tenter de présenter toute preuve possible en sa possession pour montrer que sa crainte est basée sur des critères objectifs et plausibles.

Les demandes d’asiles irrecevables au Canada

Dans les cas ci-dessous, la demande d’asile envoyée au CISR est automatique jugée irrecevable et est donc rejetée :

• le demandeur d’asile a présenté une demande d’asile dans un autre pays où il peut retourner;

• le demandeur d’asile a déjà le statut de personne protégée au Canada;

• le demandeur d’asile se trouvait aux États-Unis avant de présenter sa demande au Canada;

• l’entrée au Canada a été refusée au demandeur d’asile pour des raisons de sécurités, d’activités criminelles ou d’atteinte aux droits de la personne;

• le demandeur d’asile a déjà présenté une demande jugée irrecevable dans le passé;

• le demandeur d’asile a déjà présenté une demande qui a été rejetée par la CISR; et

• le demandeur d’asile s’est désisté volontairement ou involontairement de sa demande.

2. Votre demande d’asile aurait dû être présentée dans un autre pays que le Canada

La recherche d’une région sans persécution

La demande d’asile au Canada devrait être perçue comme une méthode de dernier recours pour sortir d’un pays. Avant de se présenter à la frontière canadienne, le demandeur d’asile devrait essayer de trouver refuge dans une autre zone de son pays. Spécifiquement, le demandeur d’asile doit être en mesure d’expliquer la raison pour laquelle il n’était pas en sécurité dans une autre partie du pays, notamment si la source de la persécution n’est pas présente dans d’autres régions du pays d’origine du demandeur d’asile.

L’importance de chercher de l’aide dans son pays d’origine

Le demandeur d’asile doit aussi essayer d’obtenir de l’aide des autorités policières ou d’organismes locaux pour être protégés des personnes ou groupes de personnes qui cherchent à le menacer. Dans la mesure où cette étape n’est pas suivie, la demande d’asile paraît moins crédible.

Le passage dans un pays autre que le Canada

Certaines personnes passent par d’autres pays avant d’arriver au Canada pour demander l’asile. Celui qui cherche à bénéficier des protections internationales doit démontrer qu’il a tenté de trouver refuge dès que possible. Ainsi, le fait de voyager d’un pays à l’autre avant de se présenter au Canada nuit les chances du demandeur d’asile.

C’est particulièrement le cas des demandeurs d’asile qui se trouvent aux États-Unis avant d’entrer au Canada. Les gouvernements américain et canadien ont une entente selon laquelle toute personne qui se trouve dans un des deux pays doit présenter sa demande d’asile dans ce pays spécifiquement.

Ainsi, si une personne prétend être persécutée et qu’elle passe par les États-Unis avant de se présenter à la frontière américano-canadienne, elle a l’obligation de faire sa demande d’asile aux États-Unis et non au Canada. Les autorités d’immigration au Canada pourraient donc refuser d’entendre toute demande issue d’un demandeur d’asile ayant séjourné aux États-Unis.

3. Votre demande d’asile contient des omissions ou des renseignements erronés

La vérification des renseignements

Il est important de vérifier la véracité des renseignements indiqués dans la demande d’asile, notamment en ce qui a trait aux dates, aux noms de personnes appropriées, aux lieux, etc. De plus, il incombe au demandeur d’asile de s’assurer que toute information requise est effectivement fournie aux autorités d’immigration.

L’omission volontaire ou involontaire

Trop souvent, certaines personnes se voient refuser l’asile parce qu’ils ont, intentionnellement ou non, commis des erreurs en remplissant les formulaires de demande d’asile. Il n’est pas dans l’intérêt du demandeur d’asile d’exclure des informations en pensant qu’elles pourraient nuire à ses chances de succès. La moindre omission constitue une fausse représentation selon la CISR, ce qui engendre le rejet de la demande d’asile.

Sachez que les agents d’immigration vérifient les renseignements fournis par le demandeur d’asile, même s’il provient d’une région reculée ou d’un pays géographiquement loin du Canada. En cas de doute, il est toujours préférable d’être sincère et de divulguer le plus de renseignements à sa disposition.

La preuve à l’appui de la demande d’asile

Dans la mesure du possible, il est primordial d’inclure des éléments de preuve pour appuyer la demande d’asile : articles de journaux, lettres, photos, preuve d’appartenance à un groupe, témoignages, etc. Tout type de preuve est accepté par la CISR. Bien évidemment, il faut s’assurer que la preuve soumise corrobore l’information inscrite dans la demande d’asile. En cas d’incohérence, il est possible que les autorités d’immigration rejettent la demande d’asile en raison du manque de crédibilité.

En bref, ce qu’il faut retenir du processus de demande d’asile, c’est qu’il contient plusieurs subtilités qui échappent à la majorité, d’où la raison pour laquelle autant de demandes sont rejetées chaque année par la CISR. Par prudence, il est préférable de demander conseil à un représentant juridique qui peut assister dans les démarches de la demande et faciliter le processus de demande d’asile.

Karen Kernisant est avocate à Aubry Campbell MacLean et exerce dans les domaines du droit de l’immigration, du droit de la famille et du droit criminel.