29 October 2017

A Family Lawyer's Top Tips for a Legal TO DO List Before You Split


Many people think hard for months or years about splitting from a spouse before actually doing so. They weigh the emotional pros and personal cons of the split. How it might affect their children. How it might affect the family financially. But they often don’t speak to a lawyer prior to the split. 
I get that. I understand that you might not know it's going to happen until it happens. That you’ve got things on your mind. And frankly, advance legal advice won’t always prevent all the difficulties that might flow from a split with your significant other. 
But prior to your split there are a few things that you should attempt to check off on your legal to do list, that will make your legal life a whole lot easier after the fact if you're able to figure them out in advance. These things can become a whole lot more difficult to resolve after a split, depending on what you’ve been able to already accomplish. 

1. PULL TOGETHER ALL YOUR DOCUMENTS

Lawyers (and courts) love paper. That's in part because people (unfortunately) lie all the time about things, or at least are hazy on past details, while documents usually can be trusted.
Sure, people occasionally forge documents, but in my 23 years of lawyering, I’ve found it to be pretty rare. So if you’re going to need to prove certain things about your family and finances after your split, documents are the best way to do that. 
After the split, you might lose access to documents, which is why you should gather together what you can before any change. Of course if you’re not the one initiating the split, you might be playing catch up, but just because your spouse has told you about a split doesn’t mean that your lives have necessarily significantly diverged yet. That might come in the following days or weeks. So act now on the documents, before it becomes difficult.
You need to gather documents primarily from four areas of your life:
  • financial (bank account, credit card, and investment statements);
  • taxes (income tax returns and notices of assessment for last 3 years);
  • property ownership and encumbrances (house title, car title, mortgage, liens);
  • children’s records from school, immunization, passport and other records.
Electronic or paper copies are fine. You don’t need originals, photocopies are fine (though originals are nice to have). Having these documents in hand will make both your and your lawyer’s life a lot easier (and less expensive) in the future.

2. FIGURE OUT WHERE YOU ARE GOING TO LIVE 

In the good old days, which really weren’t so good, one party would move out, and that would be that. Now, couples conduct wars of attrition, with each spouse remaining in the family home as long as possible so as to not lose possession of it. It's true that if you move out, your spouse might change the locks on you, and it will be difficult to get back in short of having a court order. 
The key to determine here is do you want to keep the house, would your spouse want it, or would you both need to sell and find a new place? Secondly, what would each of you do in the interim for accommodation?
I know you might not come to any firm conclusions about where to live prior to the official split, but since the family home is for many couples their primary asset, it’s important to start working out these details. 

3. FIGURE OUT LOGISTICAL ARRANGEMENTS FOR CHILDREN

The default is now shared custody. Even if that isn’t the end result of your family change, you’ll still need to determine what you believe to be in the children’s best interests in the short term concerning school, care, and housing. While finalizing children’s interim arrangements might take some negotiation with your spouse, you should figure out your position in advance. 

4. FIGURE OUT YOUR SOURCE OF INTERIM INCOME

If you’ve personally got sufficient employment income to keep you and your family supported in the short term, you may not need to worry about this one. But if you don’t, then you’ll need to figure something out. It could be using savings, it could be taking on debt. Whatever it is, it may become more difficult to execute such a plan after a split.
You are not well advised to strip all family assets, as that won’t play out well before a court who will later make a ruling on your case. But you still need an interim financial game plan. 
The reason these four factors are so important to figure out in advance of a split, if possible, is to avoid having to rush to court to deal with interim issues. I always advise my clients that family lawyers are a bargain if a settlement agreement can be kept out of court, but as soon as court proceedings commence resources start to be depleted due to all the legal pleading drafting, letter writing, and court appearance time that is required. 
If you've secured and figured documentary disclosure, accommodation, arrangements for children, and interim support all in advance of a split, then it's unlikely you'll need to rush to court to demand help with any of those items. But if accommodation, children and support all remain uncertain points of great contention, then court might be your only option - which is where at least having a treasure trove of documents will serve you and your lawyer well.

If you'd like to learn more, go to: www.nofearfamilylaw.com

09 October 2017

From Yank to Canuck! Top 3 Errors to Avoid for Americans (& others) Claiming Canadian Citizenship By Birth or Parent

Toronto - home to 2.5 million immigrants comprising 46% of Toronto's total population and 37.4% of all Canadian immigrants.
It might not be all that surprising in the current climate, but my law firm continues to see a surge of American applicants seeking to confirm their own or their children's Canadian citizenship. Confirmation of citizenship is quite different from applying to become a citizen. For those seeking confirmation they're already all citizens, but have never previously had a reason to seek out official confirmation from the Government of Canada that they have a right to work, study and live in Canada on an unlimited basis, including carrying a Canadian passport and voting in Canadian elections if they've reached the age of 18.
I haven't been able to find a reliable Internet stat on just how many Americans might be entitled to claim Canadian citizenship, but I suspect it's a large number since you don't even need to be born in Canada to be a citizen and there's always been large population flows across the so-called world's longest undefended border. If one of your parents was born in Canada, you can likewise claim Canadian citizenship and obtain a Canadian passport. There are some nuanced complicated rules when it come to who was born when, because the rules have changed from time to time and the rules that apply are mostly the rules when you or your parent was born. But lawyers can help you sort that out. 
A lot of the people who retain us to help them with Canadian citizenship confirmation have already tried to apply for confirmation, but the government returned their applications unapproved because of failure to fulfill the requirements. Sometimes those applications have been returned multiple times, leading to many months - perhaps even years - of frustration.
Yes, there's a DIY guide to citizenship confirmation. And yes, you can do it yourself. But if speed, an error free application, and lack of frustration is important to you, you should give serious consideration to using a citizenship lawyer. The cost is pretty reasonable as compared to some other legal services, and is less expensive even than many other immigration law services.
The top three citizenship confirmation errors we've lately seen in our practice relate to birth certificates, translation of documents, and photographs. All seem deceptively simple things to provide to the government. And yet, the government finds fault again and again with what is submitted because the government won't hold your hand, won't coach you through the standards, and applies a standard of perfection. 

1. BIRTH CERTIFICATE ERRORS

a. Not understanding what is a certified copy

A certified copy isn't just a photocopy. And you can't take a copy into someone qualified to make certified copies without also bringing along the original, so that person can compare the original to the copy. That's what certified means: someone trustworthy has seen the original, carefully compared it to the copy, and then stamped and written on the copy, in the customary manner applicable in the territory the certification is being made in, that the copy is "true" to the original.
In Canada, notaries, commissioners of oaths and lawyers can usually create certified copies wherever your live. There may also be other officials like bank managers or school principals who are authorized to do so.
Overseas you should probably stick with a notary who can create a "Notarial Copy" which is generally even better than a certified copy.
Family members can't certify other family members' copies.

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

In Quebec, you might need to apply for a new birth certificate prior to applying for citizenship confirmation, even if you've already got a birth certificate or baptismal certificate. The Federal Government doesn't like those Quebec documents if they were issued prior to 1994.
Who knows why. I did two law degrees in Quebec, and I don't know why, though I suppose I could find out. You've just got to accept that that's the way it is, and apply for a more recent document. 

2. TRANSLATION ERRORS

In Canada we all know there are only two official languages: English and French. Other than those pesky documents from Quebec mentioned above, the Government of Canada does not have any firm rules on document standards from a country which has produced the documents you might be submitting, but it does require that they be in English or French, otherwise the Canadian government worker processing them won't be able to read them. The government won't translate your documents for you, you've got to pay to do it yourself.
The documents can be translated either in Canada or overseas. Probably in Canada is easiest, since then it's easier to prove you've used a certified translator; make sure you submit that proof. If done by someone who isn't certified in Canada, you'll need to submit a separate affidavit from that person attesting to not only the accuracy of the translation, but also the fluent proficiency of the translator in both the language being translated from and the language being translated to.
The government will NOT take your word on the accuracy of translations without an official translation.

3. PHOTOGRAPH ERRORS

You'd think photos would be the easiest thing of all to provide. We've all now got camera phones that take great pictures. I often try to justify my overpriced new phone to myself by thinking that I actually bought a really great camera, with a phone thrown in for free. But the Government of Canada has yet to enter the digital photo age.
When I went to get my United Kingdom passport (I'm a dual citizenship), they were more than happy to accept the $3 mall photo booth strip of photos I had procured. Not so with Canada. Mess up the photos, and your application will get returned, sometimes with little explanation as to what went wrong.
Photos have a mere 15 requirements to qualify as acceptable (as quoted from the IRCC website):
  • Photographs must be printed on quality photographic paper.
  • Provide the name of the photographer or the studio, the studio address and the date the photos were taken on the back of the photos
  • Print the name of the person on the back of the photos.
  • The photographs must be identical and taken within the last six months. They may be either black and white or colour.
  • The photographs must be clear, well defined and taken against a plain white or light-coloured background.
  • If the photographs are digital, they must not be altered in any way.
  • Your face must be square to the camera with a neutral expression, neither frowning nor smiling, and with your mouth closed.
  • You may wear non-tinted prescription glasses as long as your eyes are clearly visible. Make sure that the frame does not cover any part of your eyes. Sunglasses are not acceptable.
  • A hairpiece or other cosmetic accessory is acceptable if it does not disguise your normal appearance.
  • If you must wear a head covering for religious reasons, make sure your full facial features are not obscured.
  • The frame size must be 50 mm x 70 mm (2″ x 2 ¾″).
  • The photographs must show the full front view of the head, with the face in the middle of the photograph, and include the top of the shoulders.
  • The size of the head, from chin to crown, must be between 31 mm (1 1/4″) and 36 mm (1 7/16″).
  • Crown means the top of the head or (if obscured by hair or a head covering) where the top of the head or skull would be if it could be seen.
  • If the photographs do not meet the specifications, you will have to provide new photographs before your application can be processed.
Don't staple the photo to the application - a paperclip is the most severe form of attachment tolerated.
So to avoid errors, especially as to size, just go to a passport photo place. Drug stores often do this. For about $10 or $15 dollars, you'll get your two photos. The Government of Canada is really picky about its photos.
Succeeding in your citizenship confirmation application involves not just adhering to the letter of the law, or the letter of government policy, but also the letter of the minute application instructions. Misinterpret those instructions, and you'll be receiving a return to sender envelope from Immigration, Refugees and Citizenship Canada.

Learn more at www.compleximmigration.ca

21 March 2017

A "NO FEAR" FAMILY LAW PRIMER

It seems everyone I know is getting divorced. I know statistically that's not really the case. That really only about 1 in 3 marriages end in divorce, not the 1 in 2 stat commonly thought of due to skewed numbers created by pent up demand shortly after no fault divorce became legal. But in thinking about why divorce dominates the social conversation, I've come to the conclusion that it all comes down to one word: fear.

Fear of losing custody of children. Fear of losing homes and other possessions that were only acquired through many years of hard work. Fear of losing everything that one holds dear.

As a family law lawyer, I believe at the root of that fear is fear of the unknown. Fear generated by believing legal rumours spread by your soon to be ex-spouse. Fear from friends telling you legal stories about extreme cases that they’ve read about, or heard of from friends of friends of friends.


While family lawyers perhaps can’t offer “cures” as readily as doctors, what we can offer is a cure from fear. We can exorcise those fear demons. 

I often can’t predict results in other types of non-family legal disputes because of the complexity of the law. But family law results are usually quite predictable, regardless of whether you spend a little or a lot on legal fees, because the “law” part of family law is quite simple (it’s the factual “family” part of the two word equation that gets complicated). 

I’ve got a top three family law likely outcomes for you, and a top five tips to maximize resolution results and minimize costs. Between them, they’re a start to taking away the fear.

TOP 3 FAMILY LAW LIKELY OUTCOMES

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. 

TOP 5 FAMILY LAW TIPS TO MAXIMIZE RESOLUTION RESULTS AND MINIMIZE COSTS

1. Respond in a timely way to everything. If you get served with court papers giving you until December 1st to respond, DO NOT ignore them. File something, anything, by that date. If you get a court judgment you can’t live with giving you 15 days to appeal, DO NOT miss that date, even if you can’t afford a lawyer. While a court might not accept a Notice of Appeal written on toilet paper, you can probably convince it to take some kind of paper - even if handwritten - expressing an intention to appeal. 

2. Organize all your facts and figures. It doesn’t matters if you’ve gone through life being a disorganized person. Now is the time to organize. Family law is more about numbers than other facts, and often doesn’t have a whole lot of do with the law because its legal principles are so simple. 

3. Compromise, but don’t cave. Fair legal settlements are never the product of everyone getting everything they want. But far better to settle than to leave it in the hands of a court, where neither of you will control the outcome, and the lawyers might be the only winners at the end of the day. 

4. Avoid fighting it out in court if possible. Settlement agreement negotiation and drafting by a lawyer is quite affordable, because only a few hours of time might be necessary to get to an agreement. At worst, it could be a few dozen hours. Go to court, and burning through hundreds of hours of time is entirely possible. 

5. Appeal when something really bad happens in court. Canada’s judicial system is one of checks and balances. Occasionally perverse results happen in trial courts. Judges are humans, and humans make mistakes. That is why we have appeal courts. 

In Ontario, you can appeal interlocutory (temporary) family court orders to the Divisional Court with leave (advance permission), and final family court orders to the Court of Appeal for Ontario. But appeal timelines are very short; being late in serving and filing your notice of appeal can be deadly to family law appeal success. 

Read more about the "No Fear" Family Law Approach. 

15 January 2017

TOP DRUG TRIAL DEFENCES THAT WORK

I've spent of lot of my legal career first prosecuting and then defending drug offences. Along the way I've written a few books touching on how they should be investigated, and also witnessed the defences that stand the best chance of success in leading to an acquittal.

Here are the two from my top list of drug trial defences that work. They aren't the only ones possible (that's a long list), but they're probably the most commonly successful. 

Because drug offences are "victimless" crimes in the sense that it's the public at large, rather than a specific individual, who is alleged to suffer from the offences, I find certain judges may be willing to cut accused more slack in either giving them the benefit of the doubt as to guilt (which they should be getting anyway, given the very high standard required of proof beyond a reasonable doubt), or excluding all evidence against them due to rights violations committed by police during the course of investigations. 

1. The drugs aren't mine. In order to convict you of drug possession or possession for the purpose of trafficking, the court needs to be convinced beyond a reasonable doubt that you had legal possession of the drugs in question. Generally, that requires "knowledge" and "control."

Meaning, that if you truly didn't know the drugs were where the police found them, and such knowledge can't reasonably be inferred from the surrounding circumstances, then the court must acquit you. Likewise, even if you knew about the drugs but had no control whatsoever over the location in which they were found, the court must again acquit you.

For this defence to work, your claim that the drugs don't belong to you must be reasonable, and must completely negate knowledge and control. As a result the "I was just holding them for a friend" story doesn't cut it, because you'd would still have knowledge and control ("ownership" isn't a required element here). Likewise, the defence will fail if you admit to smoking a joint as a passenger in a vehicle, since you clearly had some knowledge and control. 

Where it works best is if: 
  • the drugs are found in a vehicle that isn't registered to you, and you aren't driving, or can reasonably say you just borrowed the vehicle from a friend;
  • the drugs are found in clothing that doesn't belong to you (but you happen to be wearing), and you can again reasonably say you just borrowed that clothing from a friend; 
  • the drugs are found in a bag that doesn't belong to you, and you have a reasonable explanation for why you have no knowledge of its contents but are are nonetheless holding it;
  •  the drugs are found in a residence where you have no access to the part of the residence where the drugs are located.

Anyone hoping to make "the drugs aren't mine" claim work as a defence will probably need to testify in their own defence. In order to be believed, it will help if you don't have a criminal record. 

I've seen the defence work best in front of juries in the international airport drug importing context, where for example an accused with no criminal record and a good background gave heartfelt honest sounding testimony that she really didn't know how something like a kilo of cocaine wound up in her luggage. 

2. The Police Needed a Warrant to Search

Another result of the "victimless" crime nature of drug offences already mentioned is that there's usually no one in whose interests it is to report them to the police. As a result authorities rely heavily on intrusive investigative techniques to discover these offences. These intrusive techniques are also needed to obtain samples of the alleged "drugs" in order to test that they aren't in fact drywall compound or icing sugar. 

While warrants and privacy interests existed prior to 1982, the adoption and constitutional entrenchment in 1982 of s. 8 of the Canadian Charter of Rights and Freedoms (the protection against unreasonable search and seizure), combined with s. 24 of the Charter (authorizing a court to exclude evidence obtained in violation of the Charter) placed a new emphasis of the protection of privacy interests of Canadians against state intrusion. The most fundamental way to protect privacy is to require the state to obtain a warrant from an independent judicial official prior to conducting a search. 

Like a lot of legal things, when a warrant is and isn't required is not black and white, but rather occupies a realm imbued with shades of grey. However, there is a clear pecking order of privacy interests where the greater the privacy, the more likely a warrant will be needed. 

In any situation where drugs are discovered through a search leading to criminal charges, it's possible to argue as part of a pre-trial Charter motion that a warrant should have been obtained prior to conducting the search, and that therefore the drugs should be excluded from evidence at trial. The usual consequence of no drugs in evidence will be a collapse of the prosecution's case. 

The most common situations of drugs being discovered through a police search are: (1) in a vehicle; (2) on a person or in something a person is carrying; (3) in a building. A warrant might be required to search any of those places. 

Warrant needed for a vehicle

For vehicles, police often claim that their search is "incident to arrest" and therefore a warrant isn't needed. But the law limits the scope of such searches to only relating to the reasons for the arrest. Thus police can't conduct a traffic stop, issue a speeding ticket for which no arrest would occur, and then poke around in a vehicle on a fishing expedition looking for drugs. 

Police will often claim a vehicle is being searched pursuant to "consent" from the occupant. While I completely understand the psychological pressure you might be under to say "yes" to the police question "do you mind if I take a peek in your trunk," just say "no." Either the police have authority to search, or they don't. Saying "yes" won't earn you any brownie points. 

Warrant needed for a person 

Searches of persons or the things they're carrying are also often justified under the "incident to arrest" banner. The key here to legality is there must be a valid arrest to start with. If not, a warrant may be required to search things being carried, like a gym bag. Usually one wouldn't obtain a warrant to search a person's clothing, but personal searches involving bodily integrity (like taking blood samples or x-rays) would almost always require a warrant.

Warrant needed for a building

Other than the human body, buildings or portions of buildings which the public usually don't have any access to tend to have the highest expectation of privacy. This is particularly so with residences. Even if the police are already in a building for another legitimate purpose, they can't just go poking around looking for evidence - they need to get a warrant. In extreme situations, they should be "freezing" the scene and getting a warrant, rather than later claiming exigent circumstances didn't permit obtaining a warrant. 

So arguing that a warrant was needed to search wherever drugs or related evidence was located remains a key part of any strong drug charge defence. You should consult a lawyer with experience in search warrants to obtain advice about whether such a defence could work for you. 

12 December 2016

HOW TO OVERCOME CRIMINAL INADMISSIBILITY TO CANADA & AVOID RUINING YOUR WORK OR PLEASURE TRIP 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 the 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. 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.

  • However, there is a get out of jail free card available if the Minister deems that you’ve been “rehabilitated.” 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 is 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. 

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. 

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.




25 October 2016

Three Reasons a Real Estate Lawyer Definitely Isn't an Unnecessary Luxury in Ontario

Reason #1: It's the law in Ontario to have a lawyer represent you. It's not a scam by lawyers to make business for themselves. The law of Ontario requires that every buyer and every seller of real estate be represented by their own lawyers (unless the area is remote, where one lawyer might be able to do both sides of the deal). It's true that lawyers aren’t required to be involved in every real estate transaction in a lot of other jurisdictions. But if you consider that real estate is likely the most expensive thing you'll ever buy in your life, unless you're really into rare luxury cars or mega yachts, then the fact that you'll be paying a fraction of a single percent of the purchase price in legal fees seems sensible if it protects your investment. Believe it or not, lawyer do stuff on a real estate deal beyond print out a lot of paper that you're required to sign.


Reason #2: There may be legal problems with the title to the property. Most people now hire home inspectors to check out their dream residence for fatal building flaws. Your lawyer is there to help minimize nasty surprises over fatal legal flaws. Like that there's a registered right of way for an oil pipeline through your backyard. Or that half the garage that comes with the property is actually located over the neighbour's lot line. Or that two liens for non-payment of large debts are registered against the property.

Reason #3: You need to borrow money to buy the property. Very few of us are able to pay cash for real estate, unless we're buying bare land or a really run down house in a very cheap location. But anyone lending you a large sum of money to buy a property is going to want to register a mortgage against the property to secure the debt. And placing a mortgage on a property requires a lawyer, in part to make sure there aren't other priority claims already registered against the property in which case your lender might not be willing to lend, or might only lend at a much higher rate of interest if it doesn't get first priority against the property. 

19 July 2016

FIVE THINGS TO NEVER DO IF YOU WANT TO SUCCESSFULLY APPEAL A DECISION THAT SUCKS

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.