Monthly Archives: August 2008

Marriage vs. Cohabitation

Posted in: "All, Family Law by Admin | No Comments Saturday, August 30, 2008

Today I want to talk about the consequences of being married versus being merely cohabiting. Once upon a time, there was a sharp distinction between the two statuses; being married afforded much more protection under the law. Today, although the distinction between the two is largely blurry, some differences still exist.

In Ontario today, whether you are married or not, if you have a child with your spouse, either by birth or through adoption, you have the obligation to support that child. If the child is yours, you have to pay. With today’s DNA technology, a man can no longer simply deny his parentage and get away with it.

What about spousal support? If you’ve been married for for a long time, you will probably get some kind of spousal support if the circumstances warrant it.

However, if you’re merely cohabiting, to qualify for spousal support, you’ll either have to be past the three year mark, or if you have a child with your spouse to be in a relationship of “some permanence.”

The law, however, mandates that the child support obligation takes priority over the spousal support obligation. Therefore, if the paying party cannot satisfy both obligations at the same time, the recipient will only receive the child support payments.

Finally, the biggest distinction in law between married spouses and cohabiting ones lies in entitlement to the property when it’s divided. The married spouse is statutorily entitled to half of the difference of the wealth accumulated throughout the marriage between the parties. This is called “equalization.” The cohabiting spouse, on the other hand, does not have a statutory right to equalization.

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Contract Writing FAQ

Posted in: "All by Admin | No Comments Thursday, August 28, 2008

Today I am holding a workshop on contract writing for the Youth Employment Services. I would like to share a few tips/ frequently asked questions with the readers.

Q: I changed my mind; can I change parts of the contract after it’s signed?

A: Generally, contracts are not written in stone; parties can always change their mind by cancelling the old contract and make a new one. However, this new contract is subject to the common law rules, hence it requires consideration. A mutual agreement to change one of the clauses is not legally enforceable.

However, this problem may be addressed by inserting a modification clause when drafting the old contract, that the contract in question may be modified with the parties’ written consent. It is important to have this clause inserted when the old contract is written. If it is inserted after the fact, e.g., when you chage your mind, the insertion will be seen as part of the new contract, and requires further consideration.

Q: I am performing value-adding services on intellectual properties (e.g. editing, web design), what are the issues I should look out for?

A: For value-added services on existing intellectual properties, you should watch out for the following things:

  • Are trademarks and copyright-protected material that you are working on under proper license or ownership?

If you are not sure, you should insist that the other party, your client, undertakes and warrants that the materials in question are in compliance of the intellectual property laws.

  • Is there any restriction on the use confidential information?

Often the contents of a manuscript are strictly confidential, and a non-disclosure agreement is inserted into the contract. If such the NDA clause is in the contract, you have to be careful not to disclose any information to a thrid party. For example, whe J.K. Rowling was writing the last book of the Harry Potter series, she was under a NDA and was prohibited from leaking the ending even to her own children.

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The World’s Biggest Swordfight (Literally!)

Posted in: "All by Admin | No Comments Wednesday, August 27, 2008

Yesterday I had the privilege to be a judge for Ryerson University’s attempt to break the world record for the biggest swordfight ever (or rather, as the Guinness World Records would have it, the most simultaneously-participated role playing game).

I arrived at the scene with three other judges, including local Firefighter Jeff Balentino, Sam Babe, a partner in a local law firm, , and an emergency physician, Sheila David. The organizers utilized turnstiles to keep track the number of people present, which made our job as judges a lot easier.

The old record we were trying to break was 489 participants. Yesterday we officially had 909 participants! We technically broke the record before we even started.

As the organizers announced the start of the swordfight, Ozzy’s “Crazy Train” blasted from the speakers. Participants broke into a frenzy of swordfighting each other. Participants chased one another, ganged up on each other, and just had fun.

Many of the faculty members also joined the fight. I must admit that it was rather unusual to see high-powered academics sword-fighting each other. It was so much fun that I was very much tempted to jump into the scene!

After the event was wrapped up, we judges were invited to watch the recorded video. The event lasted 7 minutes and 45 seconds, more or less. The old record was for 10 minutes. Hence we were not sure whether we’d actually met the GWR requirement.

At the end, it was a fantastic experience, and I thank Joyce Lee and Marc Herscovitch, two of the organizers for inviting me. Ryerson University can have me back any time!

EDIT:

On Wednesday, Sept. 3, 2008, I received the following message from Marc Herscovitch:

==

Congratulations!  Ryerson University has officially qualified for the Guinness World Record!  We could not have done it without our judges.  Once again thank you for helping judge our Guinness record!

==

Good job, Ryerson!

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Come Witness a Guinness Record! (I’ll be the judge!)

Posted in: "All by Admin | No Comments Sunday, August 24, 2008

rulogo

I am pleased to announce that the Ryerson University Student Programs Office has invited me to judge their attempt to break a Guinness Record. I have, of course, accepted the invitation and will be presiding over the event.

The event will be held at the Ryerson Quad (Lake Devo) on Tuesday, August 26, from 3:30 pm to 4:30 pm. Students will be attempting to break the world record of the biggest sword fight!

Check out the facebook page of this event: www.new.facebook.com/event.php?eid=28119239103

I’ll report the details of the event in my blog this Thursday.

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Limitations to Your Lawsuit.

Posted in: "All by Admin | No Comments Friday, August 22, 2008

Recently I encountered several individuals seeking my assistance with their claims. I regret that I had to advise them that they were too late in bringing their claims forward before I send them home.

In Ontario we have a statute that prevents a plaintiff from bringing a claim in court after certain amount of time has passed; in law we call this period the “limitation period.” This rule applies to all cases in Ontario, with only a handful of exceptions.

In Ontario, the basic limitation period is 2 years from the “discovery” of the claim. In most civil litigation cases, that would be the day the dispute arose. Therefore, if you’ve had a slip-and-fall accident today, August 22, 2008, you will have until August 22, 2010 to file your claim. If you wait until August 23, 2010 to file the claim, the defendants may ask the court to dismiss your claim entirely as the limitation period would have expired.

As mentioned above, there are several exceptions under this rule. Most notable among them, are the exception regarding minors, and victims of assault or sexual assault.

For minors, the limitation period does not run (that is, it doesn’t start) until the minor is appointed a litigation guardian, or reaches the age of majority (18 in Ontario), whichever occurs first.

For victims of assault or sexual assault, the period does not run when the victim is incapable of commencing a claim because of his or her physical, psychological, or mental condition.

If you have a potential claim, you need to talk to a lawyer as soon as possible. You must not rely on what non-lawyers tell you, or you may end up in a very cold place.

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PSWLaw welcomes website editor, Martin Townsend

Posted in: "All by Admin | No Comments Thursday, August 21, 2008

I’m pleased to announce that Mr. Martin Townsend has agreed to be the editor of this website.

Martin has over 20 years of experience as a professional editor and a writer, and is a voting member of the Canadian Editors’ Association. Martin will focus on making this website accessible to everyone, as well as implementing a consistent style for the website.

A Guide to Standard Contracts

Posted in: "All by Admin | No Comments Thursday, August 21, 2008

Yesterday I wrote about investing in a standard contract. (Click here to read the blog.) Today I want to show you a few tips to reduce the costs when drafting a standard contract.

Generally, the lawyer will spend some time with you asking you the nature of your business, industry standards, and the potential risks of your business from your experience. Even if you are just starting up, you probably know more about your industry than the lawyer. Make sure you can introduce your company succinctly; this will save much valuable time on both of you and your lawyer.

Second, you should be able to describe the goods or services you are selling accurately. If there are a variety of goods and services that your firm offers, write it down in categories. This will help your lawyer get organized in a timely fashion.

Third, what are the terms of sales and payments? In many industries, there are standard terms that are generally followed. Tell your lawyer what the customary terms are, and if your proposed contract diviates from the industry terms. This is important on a contract’s enforceability.

Fourth, is there a customer satisfaction policy? Although it is by no means required by law, it is wise to have a policy in place to resolve potential disputes. Today’s consumers are more demanding than ever. Having a good customer satisfactions policy is simply good business practice.

Finally, you should tell your lawyer about any particular concerns you may have on the operation of the business. Have you had trouble collecting payments? Are there competitors trying to steal your clients away? Have there been significant liability lawsuits in your industry. By telling your lawyer any of these concerns, he or she will be able to better protect your interests.

It generally takes a few drafts to finalize a standard contract. The drafting process involves both you and your lawyer working closely together. Remember, it is your interersts that your lawyer is trying to protect. Expect to spend some time working with your lawyer, and you should be able have your standard contract in a cost-efficient manner.

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Investing in a Standard Contract

Posted in: "All by Admin | No Comments Wednesday, August 20, 2008

I often suggest to my clients that they should all have a standard contract for their businesses. Whether a business is a small or big, new or a seasoned enterprise, a standard contract will help to reduce the risks of disputes and facilitate a smooth operation.

Of course, to draft a standard contract is not cheap. You will likely require the assistance of a competent lawyer.

The lawyer will spend time to inquire into the nature and needs of your business in order to draft a contract that is effective and efficient. The lawyer must also research the relevant laws to ensure that the contract is in compliance with the law and is enforceable. As such, I do not recommend adapting home-made contracts without seeking advice from a competent lawyer.

The cost of drafting a standing contract may run from a few hundred dollars for a simple, one-page sale-of-goods contract, to tens of thousands of dollars for a complicated transaction, such as the sale of a franchise.  However, having a standard contract in place for your business will generally save you time and money in the long run. That’s why I call it an investment.

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Over My Dead Body!

Posted in: "All, Family Law by Admin | No Comments Tuesday, August 19, 2008

A while ago I wrote in a blog that an individual’s right to sue vanishes upon his or her death in common law. This shortcoming has been remedied by the family law legislation in Ontario.

Today I want to talk about a person’s legal obligations upon his or her death.

Generally speaking, a person’s civil-law obligations after death are borne by his or her estate.

The estate is required to satisfy all creditors before any gifts may be distributed to the beneficiaries. In Ontario, there is a six-month freeze on the assets of the deceased to ensure that all creditors are properly paid.

Contractual obligations undertaken by the deceased, such as services to be performed, should be satisfied in the form of liquidated damages. In Ontario, the Family Law Act also provides that all support obligations bind the deceased estate.

Therefore, for those who say “You’ll get support from me over my dead body,” indeed, that may be just what happens.

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Judivial Independence v. Protesters Demanding “Intervention” for Slain Girl, Age 7.

Posted in: "All, Family Law by Admin | No Comments Monday, August 18, 2008

Local TV station Citytv reported this story today: supporters of a slain girl’s mother attended a Toronto courthouse demanding “justice” for the girl. For those who do not live in Toronto, here’s a brief background.

A while ago a 7-year-old girl was found dead in Toronto with severe trauma all over her body. Her legal custodian was arrested and charged with second-degree murder. Apparently, the girl was given up by her mother and placed in the home of the mother’s “best friend” on consent of both parties under a court order.

Today, a group of individuals, including the slain girl’s mother, attended the Toronto courthouse today, where the order was given, demanding that “something must be done,” to remedy this “injustice.” Exactly what should be done, the protesters did not say.

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In common law, judges are immune from lawsuits regarding their decisions. Constitutionally, the judges are impartial third parties whose duty is to administer the law to the best of their abilities. This is called “judicial independence.”

Accordingly, there are very few remedies available for parties that do not agree with the decisions rendered; besides the process of appeal, there are limited royal prerogatives available through the King or Queen, e.g., immunity, clemency and pardon. (Most royal prerogatives are rarely, if ever, used today in the absence of properly enacted legislation.) Any questions of law in the decisions must be dealt with by the appellate courts.

As such, the judges may not talk about their cases in public, or out of the court room because all there is to be said should have been included in the reasons of the judgments. If judges were allowed to make off-hand remarks about the cases, it would open up a floodgate of allegations of bias and hostilities against the parties. Therefore, most courts and tribunals cannot publicly defend themselves, even when they have good reason to do so.

The protesters have a sympathetic cause with regard to the little girl’s death. However, the tragic ending of this little girl’s life could not have been foreseen by anyone. If there is anyone to blame, the protesters should blame the (alleged) murderer, not the judge.

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