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.