via Youtube.com
The media clip above is used solely for news reporting purposes. PSWLaw disclaims copyright. All rights are reserved to its lawful owner.
Monthly Archives: April 2010
Judyism: Judge Judy at Her Very Best
Ontario’s Ban on Pit Bulls Hasn’t Cut Dog Bites: Study
Five years ago Ontario banned pit bull dogs in the province citing “public safety.”* On Wednesday, the Toronto Humane Society released a study indicating that the ban has not been as effective as the government had anticipated.
In addition to a ban on pit bulls, the law also targets any dog that bites, attacks, or is a menace to public safety. Owners face fines of up to $10,000 and/or imprisonment for up to six months.
While it’s easy to blame the dogs, perhaps it’s time to put the blame on irresponsible owners.
Graphic courtesy of the Toronto Humane Society
*Dog Owners’ Liability Act, R.S.O. 1990, c. D-16
In loving memory of Tara Wang, died from pancreatic cancer on February 2, 2004.
Tagged animal rights, Animal Welfare, pitbull ban
Contents Added: Chinese Version of Buying and Selling a Small Business in Ontario
I’m pleased to announce that the Chinese version of my blog “Buying and Selling a Small Business” is now available on the website under “Information in Chinese.”
Preparing for Divorce – What Your Lawyer Needs to Know
Many people plan for their weddings, but only a few actually plan for divorce – unless they’ve found someone else.
However, it doesn’t necessarily mean that you don’t need to prepare for your divorce proceeding. The better you’re prepared, the more your lawyer can help you.
Before you come to your first appointment, you should have the relevant documents and information in your possession, and you should be able to answer these questions:
- What are the dates of birth of both spouses?
- Has either of the spouses divorced before? If so, where and when was the divorce granted?
- What were the surnames of the spouses before marriage?
- When were the spouses married?
- Where is the marriage certificate?
- When did the spouses separate?
- What properties did the spouses own at the time of marriage and at the time of separation?
- What properties do the spouses own nowt?
- Are there children involved? If so, what are their dates of birth, and where do they live?
- What are the occupations of the spouses?
- Where are your Notices of Assessment or tax returns for the past three years?
- Does either spouse have a criminal record?
- Has there been violence in the household?
The list goes on. If you think there’s something about the family that the court should be aware of, you should first bring it to the attention of your lawyer.
PSWLaw is a Toronto-based law firm practising in the area of family law.
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
Legal Aid Ontario Launches Toll-Free Client Hotline
Legal Aid Ontario has launched a client hotline to streamline their services.
By calling 1-800-668-8252, individuals throughout the province will have cost-free access to representatives on the following topics in 120 languages:
- general legal aid information
- certificate applications and assistance
- summary advice for criminal and family matters
- referrals to duty counsel, legal clinics and social services
The service is available from Monday to Friday, 8:00 am – 5:00 pm.
PSWLaw gladly accepts Legal Aid Certificates
A Brief Note on Participating in a Telephone Hearing
In administrative law, hearing before most administrative tribunals (such as the Landlord and Tenant Board, the Social Benefits Tribunal, and the Human Rights Tribunal, just to name a few,) can take place by telephone if requested by one of the parties. The tribunals generally are willing to grant such a request if a party has a disability that requires accommodation.
Telephone hearings proceed as regular hearings do. After the preliminary issues are dealt with, the witnesses are sworn in to give evidence. After the witness has given evidence, the opposing party has the opportunity to cross-examine the witness to test the accuracy of the testimony given. When the witnesses finish testifying, the parties make submissions to the tribunal before a decision is rendered.
I generally advise against requesting a telephone hearing unless it’s absolutely necessary. For example, it may be reasonable to request a telephone hearing if the disabled person is confined to a bed, while an in-person hearing is preferred if the party in question is able to walk with a cane.
From a lawyer’s perspective, telephone hearings have a few shortcomings.
First and foremost, the adjudicator cannot observe the demeanor of the witnesses. Therefore, credibility is difficult to establish.
Second, there are practical difficulties in presenting evidence. All evidence, be it documents or photographs, would have to be coordinated by the parties in advance. The question of admissibility of certain evidence will likely arise.
Third, in complicated matters, it may be difficult to keep track of the proceeding while excluding witnesses from hearing other witnesses’ testimony.
Fourth, participants calling from their cellular phones create static noise, which can greatly frustrate the progress of the hearings. Calls from cellular phones can even drop unexpectedly, causing undue delays of the hearing.
Therefore, if you can make it to the tribunal, it’s best to participate in person.
Chilling LGBT Elder Abuse: Greene v. County of Sonoma et al.
When I was in law school, I worked at an estate litigation firm that also took on elder law files relating to capacity issues. I came across lawsuits against nursing homes, live-in caretakers, hospitals, and psychiatric institutions. It’s not unheard of for the (usually wealthy) elderly to be manipulated by individuals who were supposed to take care of them. However, I’ve never come across a case as appalling as this one.
As a human being, I am outraged by the deplorableconducts of the County of Sonoma, California.
As a lawyer, I feel ashamed that a constitutional democracy has allowed this misfortune to take place at all.
Thank you, court-appointed attorney Anne Dennis of Santa Rosa for speaking out on behalf of the elderly men who couldn’t themselves!
Via nclrights.org [National Center for Lesbian Rights]
Clay and his partner of 20 years, Harold, lived in California. Clay and Harold made diligent efforts to protect their legal rights, and had their legal paperwork in place—wills, powers of attorney, and medical directives, all naming each other. Harold was 88 years old and in frail medical condition, but still living at home with Clay, 77, who was in good health.
One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.
Ignoring Clay’s significant role in Harold’s life, the county continued to treat Harold like he had no family and went to court seeking the power to make financial decisions on his behalf. Outrageously, the county represented to the judge that Clay was merely Harold’s “roommate.” The court denied their efforts, but did grant the county limited access to one of Harold’s bank accounts to pay for his care.
What happened next is even more chilling: without authority, without determining the value of Clay and Harold’s possessions accumulated over the course of their 20 years together or making any effort to determine which items belonged to whom, the county took everything Harold and Clay owned and auctioned off all of their belongings. Adding further insult to grave injury, the county removed Clay from his home and confined him to a nursing home against his will. The county workers then terminated Clay and Harold’s lease and surrendered the home they had shared for many years to the landlord.
Three months after he was hospitalized, Harold died in the nursing home. Because of the county’s actions, Clay missed the final months he should have had with his partner of 20 years. Compounding this tragedy, Clay has literally nothing left of the home he had shared with Harold or the life he was living up until the day that Harold fell, because he has been unable to recover any of his property. The only memento Clay has is a photo album that Harold painstakingly put together for Clay during the last three months of his life.
With the help of a dedicated and persistent court-appointed attorney, Anne Dennis of Santa Rosa, Clay was finally released from the nursing home. Ms. Dennis, along with Stephen O’Neill and Margaret Flynn of Tarkington, O’Neill, Barrack & Chong, now represent Clay in a lawsuit against the county, the auction company, and the nursing home, with technical assistance from NCLR. A trial date has been set for July 16, 2010 in the Superior Court for the County of Sonoma.
May 1, 2010 is NCLR’s 33rd Anniversary. Celebrate with NCLR!
Why Is Spousal Support So Hard?
For modest-income families with children, spousal support is hard to come by after the breakdown of the spousal relationship. There are several reasons for this.
1. Child support takes priority to spousal support.
Under both the Family Law Act* and the Divorce Act^, child support takes priority over spousal support if the payor is unable to pay both.
Depending on particular circumstances, the spousal support payable may be so low that it’s not worth the efforts of pursuing it. For example, a $25 monthly spousal support for two years is hardly justifiable given the associated costs.
2. Calculation of support owing is practically impossible for the layperson.
While the non-binding Spousal Support Advisory Guidelines (SSAG)+ provide a range of amounts payable, the exact calculation requires sophisticated computer calculation programs, which are not readily available to the public.
The SSAG also refers to two different kinds of calculation: spousal support without child support and spousal support with child support. The calculation takes into consideration such factors as these:
- the income of the parties,
- the individual net disposable income of the parties if child support is involved,
- spousal support payable by the custodial parent,
- shared and split custody arrangements, if any,
- the length of support payable for adult children, if any,
- the length of the marriage,
- the age of the parties at the time of their separation.
With so many variables in the equation, calculation by hand is nearly impossible except for lawyers who are very familiar with the formula.
3. It’s difficult to interpret the results of the calculation.
The SSAG provides a range of amounts of spousal support payable – a ceiling and a floor. The discrepancy between these two amounts can range from several dollars for people earning modest income to tens of thousands of dollars for extraordinarily high income earners.
The interpretation of the results requires the application of case laws and legislative principles, and the analysis of the specific facts involved in the presenting case. Without the assistance of a lawyer who is familiar with these factors,the parties are likely to find themselves stuck at an impasse, with the recipient claiming the ceiling and the payor the floor.
If you require assistance in finding out more about spousal support payable in your separation or divorce, give us a call at 416-433-5531.
PSWLaw is a results-driven law firm that practices in the area of family law.
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
*R.S.O. 1990, c. F.3, s. 38.1
^ R.S.C. 1985, c. 3 (2nd Supp.), s. 15.3
+ The SSAG is a project developed by the federal Department of Justice and authored by Professor Rogerson and Professor Thompson, both of the University of Toronto.
Toronto Debates Restriction on Store Hours
When the City of Toronto Act* came into force in 2006, the Province relinquished the power to restrict store operating hours in the city on statutory holidays. Newly empowered in this area, city council at the time deferred to the status quo, allowing only a handful of disctricts to open on the holidays, namely the Eaton Centre, the Yonge Street strip, Harbourfront, and the Distillery District. Two additional malls, Vaughan Mills and Sherway Gardens, were later granted exemption.
However, it appears that the restrictions have not been enforced against business operators outside the exempted districts. Earlier this week, the Toronto Star reported that non-enforcement of the rules has resulted in confusion among store owners.^ The malls following the rules have lost business to exempted operators as well as to those who simply have not complied.
The current rules require mandatory closure on statutory holidays including New Year’s Day, Family Day, Good Friday, Easter Sunday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day and Christmas Day. Three out of the dates, Good Friday, Easter Sunday, and Christmas Day, have Christian roots, while the rest of the holidays are civil in nature.
In the 1980s, mandatory closure on Christian holidays was ruled unconstitutional.** After the legislature removed the religious references in the mandatory closure rules, the court found civil purposes and essentially approved these rules.
Given Toronto’s diversity in population, “one size fits all” rules have their shortcomings. The popular opinion seems to be that the operating hours of stores should be decided by the individual owners, not the government.
It remains to be seen whether the debate will gather enough momentum to result in real changes.
*S.O. 2006, c. 11, Sch. A
^Paul Monoley, “Let Us Open on Holidays” Toronto Star (April 13, 2010)
**See e.g. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295
A Brief Note on the Missing Spouse and Substituted Service in Family Law
It’s not unheard of for a spouse to suddenly move away, never to be heard from again. When this happens, the sudden disappearance can create major hurdles for the remaining spouse if he or she wants to claim support or seek divorce.
One of the fundamental principles of the common law system is that parties ought to have meaningful opportunity to participate in the process; often this means notice. When proper notice is not given to a party, the fairness of the proceeding is greatly tainted.
Readers can appreciate that if the wife or the husband moves out of the matrimonial home and vanishes, the one remaining may have trouble finding the former partner and giving him or her the proper notice required under the law.
The law requires that the remaining party exercise reasonable efforts to locate the one who ran away. If the whereabouts of the disappeared can be ascertained, he or she must be served according to the rules.
A lawyer’s office can help with the task of locating the missing person, having access to searches that are generally not available to the public. An MTO or driver’s licence search may be conducted if the lawyer undertakes not to use the results for purposes other than the anticipated litigation.
If the husband or wife cannot be found directly, the court may permit substituted service through a friend or relative who remains in contact with the disappeared.
If all else fails, the court may consider an order dispensing with service if it’s satisfied that all reasonable efforts have been exercised and the other side is intentionally evading service. However, dispensing with service is hardly a solution to the problem. Because ex-parte (without notice) litigation violates the principles of procedural fairness, once the other side becomes aware of the proceeding, he or she may be entitled to move to set the results of any ex-parte proceeding aside and start afresh.
PSWLaw in Toronto is your family law advocate.
Call 416-433-5531 for an appointment today.
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
