Family Law

Lawyers vs. The Economic Downturn

Posted in: "All, Business Development, Family Law by Admin | No Comments Thursday, December 18, 2008

Lately I’ve been attending year-end gatherings within the profession. Besides the usual war stories, what seems to be on everybody’s mind is the economic downturn. Today I’d like to share my admittedly unscientific lawyers are facing this crisis.

People typically think professionals are more resistant to economic downturns than unskilled or semi-skilled workers. However, this is true only to a certain extent. In hard times people may still go to see a doctor when they’re sick, but they’re more likely to postpone elective surgeries. It’s the same for lawyers.

During a economic downturn, lawyers who practise in real estate, mergers and acquisitions, or corporate finance are more likely to feel the strain than the rest, since people are no longer actively buying and selling assets. One of my classmates was recently laid off by his mergers and acquisitions firm in New York and was forced to returned to Toronto.  Another lawyer I worked with complained that real estate closings were down 30%.

Some areas of law are more or less unaffacted  by the economic downturn. For example, in-house counsels, government lawyers, and crown prosecutors generally don’t have to worry about losing their jobs because they are always needed by their employers. Rather, lawyers who work on a contractual basis with in-house counsels and the government to handle the overflow are likely to face the cut.

Interestingly, lawyers practising in certain areas may actually see their business pick up during a difficult time. For example, lawyers who practise in labour and employment law and bankruptcy and insolvency law get busier as workers are laid off and individuals run out of money.

What’s more, I’ve heard several criminal defence lawyers and family law lawyers (particularly divorce lawyers) complain about being overbooked. I suppose during financial problems drive desperate individuals into committing crimes and cause strain on personal relationships. What do you think?

Tagged , , , , , , , ,

Good Parents Pay!

Posted in: "All, Administrative Law, Family Law by Admin | No Comments Tuesday, November 18, 2008

Suppose your relationship has ended in separation and, since you’re the custodial parent of the children,  the court ordered your former spouse to pay you child support. But then he or she decides not to pay you a penny. What do you do? Knock on your ex’s door and ask for money every month?

In Ontario there is a public office set up specifically to enforce court-ordered spousal and child support payments. This office is called the Family Responsibility Office, commonly referred to as “the FRO.” The FRO acts as an intermediary between the payors and the recipients of support payments. All support payments are remitted to the FRO and the FRO then transfers the payments to the proper recipients.

Under the law, the FRO has wide-sweeping authority to enforce support payments, including the following:

  • collect funds from federal sources (such as income tax refunds and employment insurance benefits);
  • report the payor to the credit bureau;
  • seize the payor’s bank account or assets;
  • seize lottery winnings;
  • suspend the payor’s passport and other federal licences;
  • suspend the payor’s driver’s licence; and
  • take the payor to court on a default hearing, which may result in jail time.

Besides all of the above, the FRO has recently started a campaign called “Good Parents Pay.” This campaign publishes the personal information (including photographs) of default payors online so they can be tracked down. So far the campaign has been very effective and the FRO has recovered support payments as a result.

For more information, you can visit the FRO online or use one of the following phone numbers:

24-Hour Automated Information Line
Tel: 416-326-1818
Toll-free: 1-800-267-7263

For general information about the Family Responsibility Office and recent transactions on your case.

Customer Service Unit
Monday to Friday, 8 am to 5 pm
Tel: 416-243-1909
Toll-free: 1-888-815-2757

For general inquiries such as payment information, to update your address or to request forms.

Tagged , , , , , ,

Legal Aid Ontario: Cost and Contributions

Posted in: "All, Administrative Law, Family Law, Legal Aid Ontario by Admin | No Comments Thursday, November 6, 2008

Most people think Legal Aid Ontario (LAO) is “free,” in the sense that clients with Legal Aid Certificates do not pay the legal fees out of their own pockets.

However, there are several exceptions to this rule. LAO routinely recovers costs and contributions from clients with contribution agreements, property liens, and settlement funds.

For clients whose income is higher than the financial eligibility, LAO from time to time issues Certificates with contribution agreements. The lawyer accepting the certificate will perform the services at the prescribed rate and collect money from LAO. At the same time, the client agrees to pay back part or all of the lawyer’s bill through a payment plan. This is a win-win situation in the sense that LAO can recover the cost and be accountable for the taxpayers’ money, while the clients are able to proceed with their matters expediently.

If a client meets the financial eligibility requirement on his or her income but owns real property, LAO may require the client to agree to a lien on the property. This lien is authorized by the statute. The client may remove the lien by paying back the amount owing to LAO, or LAO may recover the amount throughthe lien when the property is sold or transferred.

With respect to settlement funds by law LAO is entitled to recover part or all of the cost if the matter is settled and the client receives settlement funds. Hence, most settlement funds are paid to the lawyer handling the case in trust.

In some cases LAO may consider a waiver to recovery. These cases are rare. Generally, LAO will only waive the statutory charges against the client if failure to do so will cause hardship. As such, clients with a contribution agreement or a property lien are generally not qualified.

Tagged , , , , , , , , ,

Lawsuit Is Served!

Posted in: "All, Family Law by Admin | No Comments Tuesday, November 4, 2008

Unlike criminal proceedings, where the accused persons are compelled to attend court, courts hearing civil matters generally don’t have the power to compel defendants to appear unless the defendants are given proper notice. This proper notice is called the “originating process.”

Under both the Rules of Civil Procedure and the Family Law Rules, the originating process requires that the defendants (or respondents in family law proceedings) be served with court documents personally.

For corporate defendants, generally you can leave the documents at any place of business of the corporation with a person who appears to be in charge.

For individuals, you need to find the individual and give the documents to him or her. If you can’t find the individual, you will have to use alternative methods as prescribed under the applicable Rules.

Most law firms hire process servers to satisfy these requirements.

What about individuals who know about the lawsuit and are evading service?

Both the Rules of Civil Procedure and the Family Law Rules provide that if you can show evidence that the individual defendant is evading service, you may bring a motion for substituted service. However, to obtain permission from the court for substituted service, you must show that the method you are proposing can reasonably be expected to bring the documents to the person’s attention.

Tagged , , , , ,

Not My Fault – “No-Fault” Divorces

Posted in: "All, Family Law by Admin | No Comments Tuesday, October 28, 2008

Today I’d like to talk about no-fault divorces.

In Canada, there is only one way to get a divorce: you must demonstrate that there is a “breakdown of marriage.”

Breakdown of marriage can be demonstrated by establishing one of the following:

  1. The spouses have lived separate and apart for at least one year;
  2. The other spouse has committed adultery since the celebration of marriage; or
  3. The other spouse has treated the applicant spouse with physical or mental cruelty.

Technically, the “no-fault” divorce refers only to item #1, since there are components of “fault” in item #2 and 3. However, this is not the reason why we refer to divorce in Canada as “no-fault.”

“No-fault” divorce refers to not only the grounds of divorce (breakdown of marriage), but also the spousal support payable to a former spouse.

Under the Divorce Act, in making an order for spousal support, the court cannot take into consideration any misconduct of a spouse in relation to the marriage. Rather, the court must inquire the condition, means and needs of each spouse, including the length of cohabitation, the function performed by each spouse during cohabitation, and any arrangement or agreement relating to support of either spouse.

In the end, spousal support orders are made with the following legislative goals in mind:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Tagged , , , , ,

New Contents Added – Spousal Support, Child Support

Posted in: "All, Family Law by Admin | No Comments Tuesday, October 28, 2008

I am pleased to announce that new pages have been added to the Family Law section. Please click on the links to visit the new contents.

Support Obligations in General

Child Support

Spousal Support

Tagged , , , , , , , , ,

Are You (Legally) a Couple? – Common Law Relationships

Posted in: "All, Family Law by Admin | No Comments Friday, October 24, 2008

In the modern era, it seems that marriage is becoming a formality to many. Indeed, many rights that used to belong exclusively to married couples are now available to unmarried ones, either through legislation or the common law.

In an attempt to assert their rights, many unmarried individuals in long-term relationships often declare themselves to be in a “common law relationship.” This was particularly true in the gay and lesbian communities before same-sex marriages were legalized in Canada.

However, legally, not all long-term relationships qualify as common-law spousal relationships.

In the often-cited case Molodowich v. Penttinen (1980), 17 RFL (2d) 376 (Ont. Dist. Ct.), the court set out seven areas in assessing whether two people who were not married to each other could be defined as spouses:

  1. shelter (Do they live together?)
  2. sexual and personal behaviour (Do they have close personal connection between each other?)
  3. household management and services (Do they share household duties?)
  4. social and family activities (Do they participate together in community and family events?)
  5. societal (Are they viewed as a couple by others?)
  6. economic support (What are the financial arrangements between them?)
  7. children (Are they raising children together?)

According to the categories above, the presence (or absence) of a sexual relationship is not the sole determining factor when it comes to the definition of a couple. Rather, the court would take a functional approach in determining whether two people could be defined as a couple for family law purposes.

For example, two individuals who casually date each other would likely not be deemed a couple, since they don’t share a residence together, nor provide household services for each other. On the other hand, two seniors (pardon my stereotypical example) who live together may qualify as spouses even if they don’t have sex with each other.

Tagged , , , , , , , , ,

New Family Law Section: A Guide to Divorce, Custody, and Access

Posted in: "All, Family Law by Admin | No Comments Sunday, October 19, 2008

I am pleased to announce that a section on family law has been added to the site.

Currently available are:

Coming soon:

  • Support Obligations
Tagged , , , , , , ,

Contingency Fees – What Are They?

Posted in: "All, Administrative Law, Family Law by Admin | No Comments Wednesday, October 1, 2008

Most of you have seen ads by law firms saying, “You don’t pay unless we win!” In law, this kind of arrangement is called a “contingency fee,” meaning the legal fees payable are contingent on the success of the case.

Traditionally, the courts have frowned upon contingency arrangements because it is thought that they encouraged frivolous litigation. Also, some in the profession believed that lawyers cannot remain objective once they have a stake in the case. Until recently, these arrangements remained illegal in Ontario.

However, a new school of thought emerged after World War II. These scholars thought contingency fee arrangements would provide access to justice for those without money. They also believed that principles of economics would help weed out frivolous claims, as lawyers would become more careful in selecting cases when they are retained on contingency fees. A few American states legalized contingency fee arrangements in the second-half of the 20th century, and the practice slowly spread throughout North America.

Although contingency fee arrangements are legal in Ontario, they are nonetheless subject to restrictions. According to the Rules of Professional Conducts for lawyers, contingency fee arrangements are not allowed in family law or criminal law cases.

Contingency fees are also expressly prohibited under certain laws. For example, they are not allowed before the Landlord and Tenant Board under the Residential Tenancies Act 2006.

Contingency fees are generally calculated as a percentage of the settlement or judgment amount. The lawyer must make sure that the percentage is fair under the circumstances. In Ontario, the amount ranges from 15% to 35% plus disbursements (out-of-pocket expenses). Some firms charge the disbursements regardless of whether the case is successful or not; others absorb the costs if the case is unsuccessful.

Tagged , , , , , ,

Going “Upstairs” to the Superior Court

Posted in: "All, Family Law by Admin | No Comments Friday, September 19, 2008

In the legal community, particularly among criminal defence lawyers and consumer-end civil litigators, we often refer to the Superior Court as “upstairs.” This is because most criminal offences are tried in the Provincial Court, and small civil claims are dealt with in the Small Claims Court. Certain family law matters may also be dealt with in the Provincial Court, but when property division is involved, the case must be filed at the Superior Court.

Although technically the Small Claims Court is a branch of the Superior Court, there is an entirely different set of rules at the Small Claims Court to facilitate easy access by the public. The monetary limit to the jurisdiction of the Small Claims Court is currently set at $10,000.

There are many considerations that must be taken into account when you choose to go “upstairs” to the Superior Court. Perhaps the most significant one is the many formal requirements in the Superior Court.

(A bit of trivia: one of these formal requirements is that the lawyers must be gowned when speaking to a judge of the Superior Court.)

Unlike the Small Claims Court or summary-conviction matters before the Provincial Court, only duly licensed lawyers acting as barristers may appear before the Superior Court. The lawyers handling the case are recognized as the “Solicitor of Record,” and may not withdraw their services without the Court’s permission. For this reason, lawyers generally exercise caution when giving out estimates for cases before the Superior Court.

Cost is an important consideration when litigating in the Superior Court. In contrast to the Provincial Court, at the Superior Courrt fees are payable upon issuing claims/applications, filing defences/answers, placing the matter for a hearing (set-downs), summoning witnesses, and certifying copies of documents.

In many cases personal service is required for the delivery of the documents. Law firms generally hire process servers for these tasks. Beyond the fees payable to the Court, a litigation levy must be paid to the lawyer’s professional indemnity insurance company, known as LawPro.

The biggest cost, however, is generally incurred by the lawyers for the preparation of hearings. Often, the parties are required to file briefs, formally called factums, prior to the hearing. The preparation time ranges from several hours to days, if not weeks, depending on the complexity of the matter.

These requirements all add to the escalating cost of litigation. Excluding court-ordered costs, a half-day motion in the Superior Court may cost a client anywhere from $3,000 to over $10,000; for a week-long trial, it may cost over $100,000. Indeed, going “upstairs” comes with a hefty pricetag.

Tagged , , , , , ,
Page 17 of 18« First...101415161718