Monthly Archives: April 2009

Alternative Dispute Resolution – Arbitration and Collaborative Law

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Wednesday, April 29, 2009

Today I’d like to conclude my discussion of alternative dispute resolution (ADR) addressing the other two common ADR methods: arbitration and collaborative law.

For arbitration, participation is generally voluntary, though in many instances the parties may be compelled to participate in arbitration under back-to-work legislation or by a contract that was previously entered into. In arbitration, individuals (usually trained professionals or retired judges) are asked to act as the parties’ private judges to impose a binding resolution on the parties. They are called arbitrators.

Typically, the two parties each appoint one arbitrator, and the two arbitrators appoint the third. The panel of three hears the matter. Both parties prepare for their cases and make submissions to the panel of arbitrators. The panel, after hearing the evidence and submissions as presented by the parties, will render a binding decision that may be enforced by the courts.

Collaborative law is mainly used in family law proceedings, such as divorce and separation. Under collaborative law, both parties and their lawyers sign an agreement at the beginning of the process stating that the parties are taking the collaborative approach in solving the issues. If unfortunately, a mutually acceptable resolution cannot be reached through this method, neither lawyer may represent their clients in future court proceedings.

The lawyers’ main role under the collaborative approach is to coach their clients to work out an agreement on their own without the involvement of outside third parties, such as an arbitrator or a mediator. Other professionals, such as financial advisers and childcare specialists, may be invited to participate in the process. However, these experts do not impose conditions on the parties; rather, their duty is to assess the situation independently so that the parties may make informed decisions.

Is ADR always the preferred choice?

While ADR methods are generally more efficient and less expensive, they are not meant for everyone. For example, where there is an extreme power imbalance between the parties, ADR may not be suitable. If you wish to discuss whether your case is suitable for ADR, please do not hesitate to give me a call at 416 433 5531.

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Alternative Dispute Resolution – Negotiation and Mediation

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Tuesday, April 28, 2009

Yesterday I mentioned alternative dispute resolution (ADR) as means to solve legal problems. Today and tomorrow I’d like to briefly explain how it works.

Typical ADR may involve one or more of the following: mediation, negotiation, arbitration, and collaborative law.

Each of the above-mentioned methods requires special training. My purpose here is to give readers a brief overview of all these methods. If you need further assistance, please feel free to contact my office at 416 433 5531.

One advantage of ADR over litigation is that parties have more control over the process and the final outcome, depending on the method chosen. The participation is generally voluntary, except for court-mandated mediation sessions. Today I’d like to discuss negotiation and mediation.

In negotiation, participation is voluntary. Parties indicate their respective positions on the matter and try to come to a mutually acceptable solution. In negotiation no third-party is involved, but the parties may be represented by agents.

Mediation is similar to negotiation in many aspects, except that a neutral third-party is brought in to facilitate the settlement process. This third party is called the mediator. Although the mediator generally has some control over the process (e.g. when to take a break), he or she cannot impose an outcome on the parties.

In certain jurisdictions, there is “compulsory mediation.” It refers to the mandated mediation under the Rules of Civil Procedure during the litigation process. Under compulsory mediation, parties must attend a mediation session together before the matter may proceed before the court. However, the mediator doesn’t have authority to bind the parties to an agreement.

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The Partisan Lawyer

Posted in: "All, Family Law, Legal Aid Ontario, Legalese Dictionary by Admin | No Comments Monday, April 27, 2009

From time to time I’ve dealt with unrepresented parties before various courts and tribunals. To my surprise, more than once they’ve asked me for legal advice. What could I tell them?

Before turning them away, I told them that my duty is to serve my client only, and that they would have to seek independent legal advice from someone else. In appropriate circumstances, I might refer them to the duty counsel (if available) or Legal Aid Ontario.

When I turn them away, it’s not because I’m resentful of the opposing side. Rather, I have to do so because of my obligation under the lawyers’ Rules of Professional Conduct.

The lawyer’s role in an adversarial proceeding is partisan. His or her duty is to the client and no one else. Even individuals on the same side, (for example, co-accused or co-plaintiffs) with different interests in the same proceeding, and therefore require separate representation. Hence, it’s not uncommon in a child protection proceeding that the mother, the father, and the child each has his or her own lawyer.

While this principle may seem easy to apply, it can be rather difficult under specific circumstances. For example, it would be inappropriate for a lawyer to act for both spouses to draft a separation agreement in an uncontested divorce because of the nature of the matter and the high potential for conflict. Rather, the lawyer must advise the clients of his or her partisan role and may only accept one party as the client.

Occasionally clients may complain about the heavy burden of retaining separate lawyers when dealing with the same transaction. If the both parties cannot afford to be represented at the same time, I sometimes advise them to seek alternative dispute resolution, such as mediation or arbitration. These informal approaches often achieve more satisfactory results and are more efficient with respect to time and cost.

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Landlords and Tenants: Know Your Rights

Posted in: "All, Administrative Law by Admin | 2 Comments Friday, April 24, 2009

Toronto Star columnist Joe Fiorito recently spent a day at the Tenant Hotline, operated by the Federation of Metro Tenants’ Associations, and wrote this article.

According to Mr. Fiorito, nightmarish stories poured through the phone line on that fateful morning. Highlights included: illegal entry by the landlord, flood caused by faulty toilets, heating deficiencies, overcharged utilities bills. His conclusion: “And you still don’t think landlords should be licensed?”

***

Landlord-tenant disputes are a special breed of legal problems because they affect tenants intimately. Homes are more than shelters; they give us a sense of security and stability. Accordingly, what may seem seemingly minor problems to a landlord may lead to major headaches for the tenant.

Many cases that have landed on my desk indeed out as minuscule deficiencies of the unit.

What can be solved privately between the landlord and the tenant grow bitter litigation before the Landlord and Tenant Board.

How can you, as a tenant or a landlord, avoid having small disputes turning into full-blown hearings? You need to know your rights and obligations.

A good place to start is the internet. On the Landlord and Tenant Board’s website (www.ltb.gov.on.ca/en/index.html) ,  information in plain language is available for tenants and landlords.

For small-scale landlords, the Landlord Self-Help Centre (www.landlordselfhelp.com/frontpage.asp) provides services.

Tenants can talk to the duty counsel at all Landlord and Tenant Board locations free of charge. Duty counsels provide summary legal advice to tenants. However, the shortcoming of this service is that you have to attend in person.

If you prefer to talk on the phone, you may contact the Tenant Hotline operated by the Federation of Metro Tenants’ Associations at 416 921 9494. (This is the one that Mr. Fiorito particpated in.) The staff there will listen to your problems and provide answers or referrals.

Finally, if you think substantial legal assistance may be required for your matter, you can always call me at 416 433 5531.

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The (Mythical) Paperless Law Office?

Posted in: "All, Business Development, Legal Aid Ontario by Admin | No Comments Wednesday, April 22, 2009

Today is Earth Day. In celebration of the occasion, I’d like to talk about the idea of the paperless law office.

Lawyers are notorious paper-consumers. While some may call the seemingly insatiable consumption of paper an occupational hazard, I think otherwise.

It’s true that necessities dictate the use of paper. For example, all court forms in the Superior Court, to my knowledge, require that paper copies be filed over the counter.

Besides the required forms, lawyers file facta (brief summaries of the facts and the applicable laws), books of authority, conference briefs, affidavits (sworn evidence), motions, and correspondences. These documents often come in multiple copies – one for each party involved, one for the court, one for the file, and one for the client. As a result, the consumption of paper often gets out of control.

Aside from the court filing requirements, lawyers consume even more paper through the day-to-day operations of our law practices.

For example, for routine correspondences, we often print multiple drafts before the final correspondence is printed, signed, and faxed or mailed. While most lawyers do have access to secured email accounts, few lawyers (correct me if I’m wrong) utilize email as the main method of communication, particularly when dealing with contested matters.

But do letters coming from the fax machine or even the courier carry more weight? I think not.

I believe that excessive use of paper-based communication more likely stems from habit. Senior lawyers with decades of experience are accustomed to paper-based correspondences, and therefore many law offices are run that way. As time go by, a new generation of lawyers who are more comfortable with virtual technologies may do things differently.

Before law offices can become truly paperless (I suspect we still have a long way to go), there a’re certainly ways to run a law office in a more earth-friendly fashion. For instance, Legal Aid Ontario now accepts and encourages online billing, while accounting software is replacing the paper-and-pen bookkeeping systems in law offices across the country.

Happy Earth Day!

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Single Parents Travelling with Children

Posted in: "All, Family Law by Admin | No Comments Tuesday, April 21, 2009

As the summer approaches, many are planning their summer vacations. If you are a single parent planning to travel with children, there are a few things you should prepare for in addition to accommodation and transportation.

First, all children travelling outside the country must have their own passports.

Border control officials are vigilant about international child abduction and smuggling. This may include the removal of a child without the consent of the custodial parent, even if the child is travelling willingly with the non-custodial parent. Therefore, border control officials may require further supporting documents besides the passport.

One of the most common supporting documents recommended by the Ministry of Foreign Affairs is a consent letter from the non-accompanying parent. A sample letter may be obtained from the Ministry website.

The letter should indicate that the parent(s) not travelling with the child consent to the trip. It should also include detailed information such as the child’s name and birthday; the child’s passport number and its date and place of issue; the accompanying adult’s name, birthday, and passport number; the intended duration and destination of the trip, including the intended address while abroad; and any other information relevant to the trip that may help the foreign officials properly identify the child. It’s highly recommended that the letter be notarized.

Other supporting documents may include (but are not limited to):

  1. a copy of the divorce, separation, or custody decree, if one has been issued;
  2. a court order granting custody or guardianship, if one has been issued;
  3. a certified copy or the original birth certificate of the child;
  4. a certified copy of the death certificate of the other parent if he or she is deceased.

For more information, please visit the Ministry of Foreign Affairs website at www.voyage.gc.ca

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Too Much Money? OW’s Asset Restrictions

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Tuesday, April 21, 2009

Yesterday I talked about the ODSP’s asset restrictions. Today I’d like to talk about the asset restriction under Ontario Works (OW).

OW is the Ontario name for social assistance. Destitute individuals may receive state support for their day-to-day living if they qualify under the legislation.

Compared with the Ontario Disability Support Program (ODSP), the OW has more stringent financial eligibility. (At the same time, medical findings are not required with  OW applications.)

For example, a single recipient may not own assets more than $572.00, unless they are otherwise exempted under the regulation. Examples of the exempted assets include:

  • the principal residence
  • a motor vehicle under $10,000
  • additional vehicles for the purpose of employment under $10,000
  • tools essential to employment
  • a self-employed person’s business assets under $10,000 unless otherwise approved
  • a prepaid funeral up to an approved amount
  • compensation received for pain and suffering

Of course, most assets (other than cash or cash equivalencies) do not have a fixed value. This is why the determination of the value of assets is often contested. If an applicant is found ineligible by the ministry, he or she may appeal to the Social Benefits Tribunal after an internal review has been requested.

*O. Reg. 134/98

Note: This article is not substitute of the legislation. The legislation may have been amended since the publication of the article. This article does not constitute legal advice.

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Too Much Money? ODSP’s Asset Restrictions

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Monday, April 20, 2009

Many state-sponsored social benefit programs, such as the Ontario Disability Support Program (ODSP) and Ontario Works (OW), come with financial eligibility criteria. The purpose of such requirements is to match the benefits provided with the applicants’ needs. Today I’d like to talk about ODSP’s asset restrictions.

As I have indicated in the past (“A Brief Note on the Ontario Disability Support Program,” February 11, 2009), an applicant must meet the legislative criteria to be found as a person with a disability before he or she may receive the benefits. Besides the medical findings, there are additional financial eligibility requirements.

For example,* for a single applicant without dependents, he or she may have assets not exceeding $5,000.00 unless the assets are otherwise exempted under the regulation.

Compared with other social benefit programs, the ODSP provides a wide-range of exempted assets. Below is a partial list:

  • the principal residence
  • a motor vehicle
  • a second motor vehicle valued at less than $15,000
  • tools that are essential to the person’s employment
  • business assets up to $20,000
  • a student loan, award, or grant, as approved
  • a prepaid funeral
  • damages or compensation for pain and suffering
  • WSIB compensation received

The Director of the determines on whether an applicant is financially eligibile. If an applicant is denied support because of financial ineligibility, he or she may appeal to the Social Benefits Tribunal after an internal review has been requested.

*O. Reg. 222/98

Note: This article is not substitute of the legislation. The law may have been changed since the publication of the article. This article does not constitute legal advice.

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Office of the Children’s Lawyer on Custody and Access

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Sunday, April 19, 2009

The Ontario Office of the Children’s Lawyer (OCL) is a government agency established under the Ministry of Attorney General to represent the personal and property interests of persons under the age of majority.

The OCL’s involvement depends on the nature of the case; its role in a estate matter may differ greatly from that in a child protection matter.

From time to time the OCL involves itself in family law.

For matters involving custody and access, the OCL’s involvement is not automatic. Rather, under the Court of Justice Act, the court may request the appointment of the OCL through an order.

Once an order is issued requesting the appointment of the OCL, the parties (usually the parents) will have to complete the OCL intake process, starting with filling out the intake form. Parties are expected to give personal information such as occupation, address, and relationship to the child(ren).

If the parties fails to complete the intake process, the OCL will decline the appointment and close the file. Once the OCL closes its file, another order is required before the OCL will reconsider the appointment request.

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New Category “Legalese Dictionary” Added

Posted in: "All, Legalese Dictionary by Admin | No Comments Thursday, April 16, 2009

I’m pleased to announce that I’ve added a new subject category to my blog. The “Legalese Dictionary” will compile my blogs on terms used in legal proceedings. Be sure to visit this section often!

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