Monthly Archives: August 2009

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A Brief Note on the Family Orders and Agreements Enforcement Assistance Act and the Family Responsibility Office (FRO)

Posted in: "All, "Brief Note" Series, Family Law, Legalese Dictionary by Admin | 2 Comments Monday, August 31, 2009

Previously I wrote about the power of the Family Responsibility Office (FRO) power to enforce child and spousal support payments under the provincial legislation.*#

Today I’d like to discuss the federal counterpart legislation, the Family Orders and Agreement Enforcement Act.^

Under the federal legislation, provincial enforcement services (i.e., the FRO in Ontario) have wide access to personal information of the debtor. For example, information banks such as those controlled by the Department of Social Development, the Canada Revenue Agency, and the Canada Employment Insurance Commission may be searched.

Further to the access of personal information, federal funds (for example, income tax refunds) may be garnished under the applicable provincial law.

The provincial enforcement agencies (in Ontario, the FRO) may also seek the denial of certain licences to debtors who are in persistent arrears. Possible actions include

the denial of new licences,
suspension of currently held licences,
the denial of the renewal of licences.

Examples of the licences covered by the provision include the following:

Canadian passport
Licences issued under the Aeronautics Act, such as commercial pilot licences – aeroplane
Licences issued under the Canada Shipping Act, such as able seaman certificates,

However, in my opinion, the biggest potential damage to a debtor doesn’t come from the mere denial of a licence: it stems from the fact that there is no appeal for any action taken by the FRO under this piece of federal legislation**.

Once a licence is denied or suspended, it can only be lifted if the enforcement agency is satisfied in accordance to the provisions under the Act, or that the support payment in question is no longer enforced by the FRO.

PSWLaw is your family law advocate.

*See “Failure to Pay Support” (posted March 22, 2009).

# Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

^R.S.C. 1985 , c. 4 (2nd Supp) as am.

** ibid., s. 71

Please Note: This article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. Regulation referred to may have been amended or repealed since the publication of the article.

Tagged "Brief Note" Series, arrears, child support, Family Law, federal government, federal-provincial agreements, FRO, licence, spousal support, support

Legalese Dictionary: Counterclaims, Crossclaims, and Third Party Claims

Posted in: "All, Legalese Dictionary by Admin | 1 Comment Friday, August 28, 2009

Today I’d like to discuss three terms commonly seen in civil litigation – counterclaims, crossclaims, and third party claims – and what they mean.

Counterclaims

In a civil proceeding a counterclaim refers to a claim made by the defendant against the plaintiff (or the plaintiff and another person). This claim may be an effort by the defendant to offset the plaintiff’s original claim relating to the main action, or it may be an entirely different claim not relating to the main action.

The Ontario Rules of Civil Procedure* provides the following with respect to counterclaims:

27.01

(1) A defendant may assert, by way of counterclaim in the main action, any right or claim against the plaintiff including a claim for contribution or indemnity under the Negligence Act in respect of another party’s claim against the defendant.

(2) A defendant who counterclaims against a plaintiff may join as a defendant to the counterclaim any other person, whether a party to the main action or not, who is a necessary or proper party to the counterclaim.

For example, if A sues B for unpaid accounts, B may file a counterclaim against A for damages as a result in the corresponding delay of service. This would be a counterclaim relating to the main action.

B may also file a counterclaim against A for unpaid personal debt not relating to the accounts in dispute. Such a claim for unpaid personal debt is generally permitted as a counterclaim because it involves the same parties as the main action.

Crossclaims

A crossclaim refers to a claim brought by the defendant in the main action against a co-defendant who may be liable for all or part of the plaintiff’s claim or for an independent claim arising out of the same transaction or a related transaction.

Here’s what the Rules state on the subject of crossclaims:

28.01

(1) A defendant may crossclaim against a co-defendant who,

(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;

(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,

(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or

(ii) a related transaction or occurrence or series of transactions or occurrences; or

(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.

(2) A defendant who claims contribution from a co-defendant under the Negligence Act shall do so by way of crossclaim.

For example, A sues defendants B and C. Co-defendant B may bring a crossclaim against C under an indemnity agreement. However, if the crossclaim has no real connection with the plaintiff’s claim in the main action, the crossclaim will be struck out.^

Third Party Claims

A third party claim refers to a claim brought by the defendant against a third party that was not named by the plaintiff. A defendant is not allowed to bring a claim against a third party if the claim is independent of the outcome of the main action.

The Rules have the following to say about third party claims:

29.01 A defendant may commence a third party claim against any person who is not a party to the action and who,

(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;

(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,

(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or

(ii) a related transaction or occurrence or series of transactions or occurrences; or

(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.

For example, A sues B, an accountant, for bad tax advice. Accountant B, who received the information from B’s solicitor C, may in turn bring a third party claim against C for the advice given since C might be found liable for part of A’s damages.#

* R.R.O. 1990, Reg. 194

^Metallizing Co. v. Kavanagh, [1946] O.W.N 645 (H.C.)

#Cardar Investments Ltd. v. Thorne Riddell (1989), 71 O.R. (2d) 29, 36 O.A.C. 280 (Div. Ct.)

Tagged Civil Litigation, civil proceeding, counterclaim, court, crossclaim, defendant, lawsuit, legal terms, legalese, Legalese Dictionary, plaintiff, third party, third party cliam

PSWLaw: New “Family Law Practitioner” Ad Campaign

Posted in: "All, Business Development, Family Law by Admin | No Comments Tuesday, August 25, 2009

Starting September 2009, PSWLaw is commencing a major ad campaign to promote its family law services.

Notably, the ad will appear in the 2009 Toronto Police Games program and prominent internet sites. Be sure to keeps your eyes open and watch out for our ad!

PSWLaw, family law practitioner, provides services on

divorce & separation agreements
custody and access matters
spousal & child support issues
property division
negotiated settlements
representation at all levels.

To book an appointment for family law matters, please call our office at 416-433-5531.

Tagged access, best interests, child, child support, custody, divorce, divorce & separation agreements, Family Law, negotiated settlements, negotiation, property division, representation, spousal support

Legalese Dictionary: What Are the “Best Interests of the Child”?

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Monday, August 24, 2009

It’s well-established in contemporary Canadian jurisprudence that when dealing with a child, the best interests of that child must prevail.

But what, exactly, count as the child’s best interests?

Section 24 of the Children’s Law Reform Act* specifies these interests. In determining the best interests of a child, the court must consider all the child’s needs and circumstances, including the following factors:

the love, affection and emotional ties between the child and the child’s family members and those who are involved in the child’s care and up-bringing
the child’s views and preferences if they can be reasonably ascertained
the length of time the child has lived in a stable home environment
the ability and willingness of each person applying for custody of the child to provide guidance and education, the necessaries of life and any special needs of the child
any plans proposed for the child’s care and up-bringing
the permanence and stability of the family unit
the ability of each person to act as a parent
the relationship by blood or through an adoption order

In addition to the above factors mandated by the legislation, the common law also requires other points, such as cultural heritage and race be considered under the appropriate circumstances.^

The legislation is clear that a person’s past conduct can only be considered if it relates to the factors above or if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

In determining the person’s ability to act as a parent, the court inquires whether the person has ever committed violence or abuse against the following persons:

his or her spouse
a parent of the child in question
a member of the person’s household
any child

*R.S.O. 1009, c. C.12

^see e.g. Van der Perre v. Edwards, [2001] 2 S.C.R. 1014; 69 RFL (5th) 396

PSWLaw has the best interests of child in mind when dealing with custody and access matters.

Please Note: This article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. Legislation and/or regulation referred to may have been amended or repealed since the publication of the article.

Tagged access, best interests of child, custody, Family Law

Mission Statement Updated

Posted in: "All by Admin | No Comments Wednesday, August 19, 2009

Our mission statement has been updated!

Mission Statement

Our Core Purpose

We assist our clients with excellent legal advice for their unique circumstances.

Our Position

We provide realistic, achievable solutions to our clients’ legal situations.

What to Expect as My Client

As my client, you can be assured that I will provide competent services dedicated to your case. You can count on:

open discussion and candid legal opinion on your case,
guaranteed confidentiality and solicitor-client privilege,
relentless representation with strong advocacy skills, and
effective communication with my team.

At the same time I count on some teamwork from you, too. You should be prepared to:

provide honest disclosure of your case,
be punctual for your appointments and court appearances, and
spend time working with me when required.

Legal Aid Ontario Faces $56M Shorfall

Posted in: "All, Legal Aid Ontario by Admin | No Comments Wednesday, August 19, 2009

The Globe and Mail published this story today on Legal Aid Ontario‘s $56M shortfall.

According to the story, as the economy slumps, LAO has been losing revenue from the Law Foundation, which grants three-quarters of its income to LAO. The income mainly consists of interest accrued in Ontario lawyers’ trust accounts. (See my blog on the Law Foundation, “Trust Money & Interest” on January 21, 2009.)

This year, the LAO is facing a $56 million shortfall. The CEO and president of LAO said that it will likely be years before LAO’s revenue from the Law Foundation recovers.

Unless LAO receives adequate funding from the province immediately, the agency will likely start making cuts. The staff lawyers at Legal Aid clinics across the province are understandably angry, as they may be forced to spend less face-to-face time with their clients, who in turn would have to seek legal advice from the internet or over the phone.

This will likely create more confusion than assistance to low-income Ontario residents, who are often ill-equipped to participate in legal proceedings on their own.

Let’s hope the certificate program (which I participate in extensively) won’t be affected as much as the staff lawyers. After all, my mechanic is already charging me an hourly rate that’s well above my LAO tariff rate.

PSWLaw gladly accepts legal aid certificates.

Tagged current affairs, funding, legal aid certificate, Legal Aid Ontario

The Art of Corporate Sponsorship

Posted in: "All, Business Development by Admin | No Comments Tuesday, August 18, 2009

Today I had the pleasure of attending a marketing seminar on corporate sponsorship, hosted by the Toronto Board of Trade. The speaker, John Doig of Scotiabank, spoke about corporate sponsorship. I’d like to share some highlights of his speech with you.

Why Sponsorship?

In the 21st century, consumers are bombarded by the media. Traditional advertisements are often passively received and easily ignored by the consumers. In contrast, sponsorship tends to be more engaging and relevant to the targeted consumer group. Besides, advancing a charitable cause gives you a warm and fuzzy feeling inside.

Differentiate Your Business Through Sponsorship.

To make your business standout, try differentiating it through sponsorship. The event being sponsored should be relevant to your customers. You should be able to explain to your customer in an engaging way why you are sponsoring the event. For example, the neighbourhood pizza joint may sponsor the local football team because they are welcome to hangout in the restaurant after practice.

Besides cutting the cheque, you should make sure that resources are available to promote the sponsorship properly. Otherwise, the sponsorship won’t give you much more than the warm fuzz in your heart. A small to mid-sized firm should have the means to produce items such as a press release, brochures, and retail signs – something to pique people’s interest.

When considering which events you wish to sponsor, you should also ponder whether the sponsorship is sustainable and not just a one-off opportunity. Repeated sponsorship generates better impression and signals commitment, while a one-time sponsorship may suggest opportunism. Your sponsorship efforts should not come and go with a single bang but rather trickle through the coming years.

Tagged Business Development, business strategy, marketing, sponsor, sponsorship

A Brief Note on Arbitration

Posted in: "All, "Brief Note" Series, Business Development, Legalese Dictionary by Admin | No Comments Tuesday, August 11, 2009

What is arbitration?

Arbitration is a form of alternative dispute resolution (ADR). The parties involved in a dispute voluntarily or obligatorily refer it to one or more persons for a decision, to which the parties agree to be bound.

Legal requirements

In Ontario, arbitration, other than international commercial arbitration, is governed by the Arbitration Act, 1991. It applies to arbitration conducted pursuant to “an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them.”*

Further to the statutory requirements as set out in the Arbitration Act, the common law has developed two concepts which it regards as characteristic of arbitration: (1) the existence of a dispute and (2) the duty (generally under contract) or intent of the parties to submit that dispute to arbitration.#

If the common law requirements above are not met, the proceeding cannot be regarded as arbitration and the Arbitration Act does not apply.

For example, disciplinary process as set out in a union constitution is not considered as arbitration.++ If one party to the dispute does not agree to proceed to arbitration, then the proceeding cannot be regarded as such, either.**

Arbitration clauses are often found in commercial transactions (particularly international ones) and labour and employment agreements.

What are the benefits of arbitration?

The arbitration process is often less formal and more expedient. As such, the costs will generally be lower than litigation in courts.
The parties may choose the arbitrator who hears the dispute. This is particularly useful when the matter is highly technical and a degree of expertise is required.
At the international level, arbitration awards are more easily to be enforced under private international law.^
Arbitration proceedings may be conducted in private, whereas documents used in litigation become public record.

If you require assistance or representation regarding arbitration, please contact my office at 416-433-5531.

* S.O. 1991, c. 17, s. 1

# Sport Maska Inc. v. Zitter, [1998] 1 S.C.R. 564 at 585.

++ Downey v. Leitner, [2004] O.J. No. 4466, 2004 CanLII 34927 (S.C.J.)

** Universal Workers Union, LIUNA, Local 183 v. Ferreira (2009), 95 O.R. (3d) 118

^ see e.g. International Commercial Arbitration Act, R.S.O. 1990, c. I.9

Tagged ADR, application, arbitration, Civil Litigation, common law, family arbitration, international commercial arbitration, Legalese Dictionary

Tourists, Be Wary of Unlincensed Tour Operators!

Posted in: "All, Business Development by Admin | No Comments Sunday, August 9, 2009

Lately downtown Toronto has been packed with tourists from all over the world. They’ve got places to go and money to spend. Therefore, it’s hardly surprising that sight-seeing tour operators are springing up at major intersections to attract potential customers. The packages vary from in-town rounds to day-tours to the surrounding attractions, such as the Niagara Falls.

Besides the well-established sight-seeing companies, there are also “underground” operators who attract budget-conscious tourists with lower rates.

For example, opening one local paper you may expect to see the following ads:

Buffalo Shopping Tour – $79

(A return bus ticket costs much more than $79)

Niagara Falls – $50 per person

(The licensed ones range from $79 to $139)

Airport rides – $20 one way

(A one-way taxi from downtown Toronto to Pearson International Airport costs at least $50)

These operators are mostly private individuals with a vehicle trying to make a quick buck. I call them “underground” because most of them aren’t licensed and don’t have the necessary registration and permits. They are often significantly cheaper than their established counterparts but promise the same attractions.

So what’s the problem?

The problem is this: what if there’s an accident during the tour?

Because these unlicensed operators often attract customers based on their low price, cost becomes a major concern. As the result of the relentless cost-cutting, proper maintenance of the vehicles may be neglected.

Further, these tour operators often work from their personal vehicles. Without commercial insurance coverage, injuries as a result of commercial activities are excluded. If an accident occurs during one of the paid tours, the insurance company will likely deny coverage to the injured passengers.

The consequences may therefore be devastating. Besides the physical injuries, there may be psychological trauma from being injured in a foreign place and financial ruin as the result of astronomical medical care expense for the uninsured.

If you’re planning a vacation, be sure to remember safety first!

Tagged in the news, insurance, licence, news, tour operators, tours

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