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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:

  1. 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
  2. the child’s views and preferences if they can be reasonably ascertained
  3. the length of time the child has lived in a stable home environment
  4. 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
  5. any plans proposed for the child’s care and up-bringing
  6. the permanence and stability of the family unit
  7. the ability of each person to act as a parent
  8. 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 Legislation and/or regulation referred to may have been amended or repealed since the publication of the article.

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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.

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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.

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Getting Fired Via Facebook

Posted in: "All, Business Development, Just for Laughs by Admin | No Comments Friday, August 14, 2009

I’ve written a few blogs about the hazards of (mis)using the popular social networking site Facebook including ”Facebook Security Concerns,” (posted July 7, 20090, and “Facebook No-No’s for Divorcing Couples,” (posted on July 6, 2009).

Here’s the latest: getting fired via Facebook.

Grumpy worker:

OMG I HATE MY JOB!! My boss is a total pervy wanker always making me do shit stuff just to piss me off!! WANKER!

Boss:

Hi, I guess you forgot about adding me on here?

Firstly, don’t flatter yourself. Seconly, you’ve worked here 5 months and didn’t work out that I’m gay? I know I don’t prance around the office like a queen, but it’s not exactly a secret. Thirdly, that “shit stuff” is called your “job”, you know, what i pay you to do. But the fact that you seem to fuck-up the simplest of tasks might contribute to how you feel about it. And lastly, you also seem to have forgotten that you have 2 weeks left on your 6 month trial period. Don’t bother coming in tomorrow. I’ll pop your P45 in the post, and you can come in whenever you like to pick up any stuff you’ve left here. And yes, i’m serious.

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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

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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!

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Fraud Alert: Bad Cheque Scams

Posted in: "All, Business Development by Admin | No Comments Wednesday, August 5, 2009

Lawyers take cheques often because we’re not allowed to accept cash in large amounts. Therefore, lawyers are a logical target of bad cheque scams.

But take note: the “bad cheque scams” here are not your ordinary garden-variety bounced cheques. The fraudsters don’t just skip their bill; they walk away with real money. The type of scam involves running a counterfiet cheque or bank draft through a lawyer’s trust account before it’s cleared by the bank. When the bad cheque bounces, the victim lawyer is left with a significantly shortfall in the trust account.

One might ask, why would anyone pay out real money before the cheques are cleared?

According to LawPro, the Lawyer’s Professional Indemnity Company, the fraudsters are sophisticated. They generally come with proper documentation (invoices, letters), and corporate background checks often look normal. The certified cheque or bank draft invariably appears authentic with all securities features present. The scammers are often very charismatic and can pressure the lawyer into disbursing funds earlier than normal for a variety of reasons.

Adding pressure to the lawyer, the “client” often arranges that the closing date is generally around a bank holiday and appears distressed about the troubled cash flow.

Remember, it takes only one seemingly legitimate reason for the victim lawyer to cave in and pay out the funds.

What can be done to avoid bad cheque scams?

LawPro offers the following tips:

  • Do a reverse phone number search on the company and verify the company’s phone numbers, addresses and email contacts with an independent third-party, such as the telephone company.
  • Go to the bank website to verify the branch transit number, address and phone number as they appear on the cheque.
  • Hold the funds until your bank confirms that the cheque has cleared, and it’s safe to withdraw the money from deposit.
  • Exercise caution when clients are previously unknown to the firm and are “in a rush.”
  • Be suspecious of higher-than-usual fees promised by the client for the quick turnaround.

For more information, please visit LawPro at www.lawpro.ca.

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Ontario Apology Act Now in Force

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Friday, July 17, 2009

Sorry may no longer be the hardest word, at least in Ontario.

A while ago I posted the story “Sorry Seems to Be the Hardest Word,” on the (then) proposed Apology Act.* I’m glad to report that the Act has been passed and has been in force since April 23, 2009.

In a nutshell, the act “provides that an apology made by or on behalf of a person in relation to any civil matter does not constitute an admission of fault or liability by the person or an acknowledgment of liability in respect of a claim in relation to the matter, does not affect the insurance coverage available to the person making the apology and is not admissible in any judicial or quasi-judicial civil proceeding.”^

The Act stipulates that in civil proceedings, administrative proceedings or arbitrations, evidence of apology is inadmissible as evidence of fault or liability in connection with that matter.

However, there are exemptions – situations in which the Act is not applicable:

  • If the apology is given during testimony at a civil proceeding, then the apology is admissible as part of the testimony.
  • The Act does not apply to criminal proceedings.

In fact, section 3of the Act provides that “Nothing in this Act affects the admissibility of any evidence in a criminal proceeding, including a prosecution for perjury, or a proceeding under the Provincial Offences Act, or the use that may be made in the proceedings referred to in subsection 2 (3) [civil proceedings, administrative proceedings or arbitrations] of a conviction for a criminal or provincial offence.”

  • The Act does not affect the calculation of the limitation period under the section 13 of the Limitations Act.#

The legal community in Ontario largely welcomes the enactment of the legislation.

Says Mary Jane Smitt, a litigation partner with Blakes, Cassels & Graydon LLP in Toronto: “Although there will be lawyers who will be cautious about advising clients to apologize, … one of the big culture shifts in the law over the last decade has been the consideration of other means to resolve disputes. Apologies protected by the legislation is one more tool in this arsenal.”+

Perhaps the spirit of the Act is best captured by the spokesperson for the Ontario Ministry of the Attorney General, Brendan Crawley, who said “Saying sorry for an accident or wrongdoing is the right thing to do.“**

I couldn’t agree more.

^Explanatory note, extracted from the Bill as introduced.

*S.O. 2009 c. 3

#S.O. 2002, c. 24, sch B

+Donalee Moulton, “Legal profession not sorry to see apology legislation” The Lawyers Weekly (17 July 2009) 1

**Ibid.

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

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Pet Travelling Made Easy – Pet Airways Take Off!

Posted in: "All, Animal Welfare, Business Development by Admin | No Comments Friday, July 17, 2009

Generally I only blog about law related stuff. However, a story about Pet Airways piqued my attention, and I’d like to share with my readers.

Billed as the first pet-friendly commercial airline, Pet Airways is a flight operator that flies pets in the main cabin, rather than in the cargo area.

  • How it works:

You drop off your pet at the airport “pet lounge” and then check-in for your pet. Your pet gets to hangout at the lounge and takes a potty break before the flight. Your pet then gets boarded into one of the secured pet carriers (provided free of charge) in the main cabin. a pet attendant checks on your pet every 15 minutes or so. The plane is well-lit and well-ventilated. Upon arrival your pet can be picked up at the destination airport’s pet lounge.

  • What if the flight is delayed or canceled?

Like human air travel, delays and cancellations happen. If the flight is delayed shortly, your pet gets to hangout on the plane or in the lounge. If there’s a long delay, your pet is board at the nearest affiliated pet resort at the company’s expense. Just like human travel.

  • Meal and entertainment

The “pawssengers” all face the aisle, so they get to watch their neighbours for entertainment.(Dogs, cats and others are put in separate areasqueasy from motion sickness. In fact, the company vet suggests that you don’t feed your pet four hours prior to flight.

However, if the pet attendant sees that pawsengers badly need some water or something to chew on, he or she will give them a little to make them feel better.

  • Can I fly with my pet?

No. This is a pet-only airline.

  • What animals are restricted?

Humans.

For more information, visit the website at www.petairways.com.

***

Although the operator is currently U.S. based with few restrictions (other than human passengers), I remind readers that the Province of Ontario restricts or prohibits the importation of certain animals and endangered species, including pit bulls.

Would be passengers (or rather, “pawssengers”) should have their human guardians comply with local animal importation restrictions.

Note: This is not an endorsement. (Although it sounds almost like one.)

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