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.