Tuesday, November 24, 2015


The Three-Thirds Rule

I once read somewhere that 1/3 of all cases settle after getting lawyers involved but before any court action is started, another 1/3 settle after the start of court action but prior to the case going to trial, and another 1/3 are only resolved during or after the trial (or motion or application or other type of contested hearing). I'm not sure if these figures are accurate for Ontario courts, but I do believe they provide a good guide for determining when and how you should resort to professional legal help and the courts when you're involved in a contentious legal dispute.

Make sure you take full advantage of that first 1/3 of settlements without court chance before you rush off to court. And even when you are in court, don't rush off to trial without maximizing that second 1/3 of settlements prior to trial chance. 

A Modest Legal Investment at the Pre-Court Stage

Some disputes are always going to settle without any lawyer involvement, because all parties to the dispute are reasonable, and there's not much need for legal advice about respective rights. These could involve business or personal debts, or simpler disputes over property rights. 

Other disputes might still have reasonable parties involved, but require a little nudge from the lawyers in the advice department because of the stakes at play. A good example is family law situations where, regardless of how amicable the split, spouses will need solid legal advice on asset split, spousal and child support, and child custody in order for any agreement arrived at to be later defensible in court if one of the parties subsequently decides he or she is unhappy with the arrangement. 

Still other conflicts could need a lot of lawyer involvement prior to the court phase in order to reach a settlement, with the lawyers playing the roles of negotiators, mediators and advisors on next steps. You should always bear in mind what is the best alternative to a negotiated agreement. That extra lawyer involvement at the pre-court stage will usually come at a fraction of the price of lawyer-led court action. 

A couple of hours of lawyer time, or even a dozen hours depending on stakes, can be a total bargain if it solves your legal issue for you. As soon as the court action ball starts rolling, the lawyers will start to burn through time. Court action is expensive not because of the fees the courts charge - they only amount to a few hundred dollars, with your tax dollars covering the vast majority of court judge, clerk, reporter and building time - and not even because of lawyer hourly rates, but because of the amount of time lawyers need to devote to becoming properly prepared for court, and then appearing for you in court. 

Four Tips for Deciding When to Proceed to Court

1. Wait as long as is humanly possible. Even if it feels almost impossible to wait any longer, because your situation has become intolerable, it may pay to wait even longer. Once you pull that court action trigger, the positions of parties harden, lawyer bills shoot up on both sides, and it becomes difficult for any party to disengage from the action. 

2. Start court action if there is a true stalemate in negotiations. I'm not saying you should wait forever to go to court. Eventually, enough is enough, and sometimes initiating court action may break a stalemate, causing the opposing party to immediately settle in order to avoid legal fees and the possibility of losing in court. But you shouldn't count on that settlement. 

3. Start court action sooner if the stakes are so high that they justify the cost, and you have the resources to fund such action. If you're fighting over $10,000, you should be much more cautious over initiating court action than if you're fighting over $1,000,000. In the first fight, your legal fees could exceed the sum in dispute. In the second fight, the legal fees might be just a few percent of the amount of loss. Non-monetary high stakes that also could justify sooner court action might involve child custody arrangements, or if your own personal liberty is at stake. 

4. Immediately start court action if your position is going to be significantly prejudiced by waiting. If assets that could compensate you for your loss or evidence that can prove that loss is at risk of disappearing, because the opposing party might hide them or destroy it, you might need to immediately go to court to freeze those assets and preserve that evidence. A Mareva Injunction or Anton Pillar Order are interlocutory remedies that a court can give you to preserve assets and seize evidence. An injunction can generally force a party to do or not do something on a temporary basis when there is a risk that you will suffer irreparable harm if the injunction is not granted. 

Friday, November 6, 2015


Other than being charged, making or not making bail may have a greater affect on the outcome of your criminal case than any other factor. Greater than the evidence investigators claim to have amassed against you. And even greater than what transpires at your trial.

Our constitutional law is rife with assertions that you are presumed innocent until proven guilty, and that you've got a right to a trial within a reasonable time. There's a less well known provision contained in s-s. 11(e) of the Canadian Charter of Rights and Freedoms which affirms that "Any person charged with an offence has the right ... not to be denied reasonable bail without just cause." But don't make the mistake of thinking this provision means that you're almost guaranteed to make bail if you don't have a horrible criminal record and aren't already out on multiple other bail releases.

The Crown frequently demands that people accused of offences be detained in custody pending trial. Even for people with no criminal records. Even for people not already out on another bail. And even for people not accused on the most serious criminal offences. The ultimate release decision rests with the Court, not the Crown, but if the Crown demands your detention then you're facing a contested bail hearing. You should make sure you have a lawyer for such a hearing, regardless of whether it is legal aid duty counsel, or a privately retained lawyer (I serve in both roles from time to time).

Unfortunately, Parliament has set up a complex set of provisions in the Criminal Code governing the tests which must be met to make bail, the evidence admissible at a bail hearing, and on whom the onus falls - Crown or defence - to establish the tests. What this means for you or your loved one who is locked up awaiting a bail hearing is that you need a strong bail plan to present to the court, and you need evidence to back up it. Promises simply to behave usually just won't cut it alone.

So the tips I can offer you to maximize your chances for that get out of jail free card are:

TIP #1: Contact one or two "sureties" who can be present at the bail hearing to vouch for you, and agree to supervise you during your release pending trial. They're like civilian jailers, who keep an eye on whether you're obeying your conditions, and pledge to call the police if you breach. They also usually pledge a sum of good conduct money, but usually without any upfront deposit. If you're able to, start calling potential sureties as soon as you've been arrested, as you might have trouble getting hold of them, and everyone you call might not want to act. Or ask your lawyer to make the calls.

TIP #2: Figure out if you have some cash available for a bail deposit. While we don't do massive bail bonds in Canada as happens in the U.S. (where a bondsman essentially lends you a large amount for bail), the courts do always appreciate some cold hard cash as a behaviour incentive while on bail. It's almost always required if you're from out of province or out of country from the place you're accused of committing an offence in. Any amount from $1,000 to $100,000 can be useful (higher amounts of cash are possible, I suppose, but I have only personally seen no deposit sureties go higher, like when someone pledges a house).

TIP #3: Present a release plan that will keep you out of trouble while on bail. This plan could range from anything like where you will be working or attending school, up to a curfew, and even 24 hour per day house arrest with never leaving the house without your surety. Generally, the more serious the accusations, and more of a record or other releases you have amassed, the more the need for stricter release conditions.

TIP #4: Gather together documentary evidence to support your sureties and release plan. So if you claim to be working somewhere full time, ask your boss for a letter to confirm this. If your mother intends to pledge $20,000 in your favour for your release, obtain her title documents for her house proving what she owns, how much it is worth, and how much of a mortgage sits on it - great precision here isn't required, but something is usually necessary beyond the simple word of your surety.

Tuesday, November 3, 2015


Everyone agrees the "best interests of the child" test trumps all in child protection proceedings. However, the innumerable child protection court cases which reveal five versions of children's best interests - the Children's Aid Society (CAS) version, the Office of the Children's Lawyer (OCL) version, the father's version, the mother's version, and the court's version - demonstrate the often highly subjective nature of children's best interest assessments. Child protection law is more "art" than "science." Which is why expert reports, while helpful, are never definitive in presenting the one ideal plan of care that will be in the children's best interests. 

If one even looks at basic children's law principles like children are generally better off residing with their parents, parental contact should be maximized in access situations, and wishes of older children should be taken into account when making best interests assessments, competing views of best interests quickly turn the conversation into a quagmire if CAS insists neither parent is fit, both the mother and father insist it is the other parent who is unfit, and the OCL expresses the children's views that they want to live equally with each parent. 

The demand you hear most often from child protection judges is for more evidence of best interests. Judges don't want to guess, they want to decide on facts. So if you - whoever you are - are putting forward a particular plan of care for a child, you're going to need some cold, hard facts to back up why that plan is feasible, rather than just wishful thinking. 

Rules of evidentiary admissibility are pretty loose in child protection, so you don't need to get too hung up on legal formality. Letters written by relatives, or social workers, or medical professionals, or addiction counsellors can all work, though usually they should be appended as exhibits to someone's affidavit sworn to present the overall version of the facts. But each of those people don't need to file their own affidavits, and usually would not be required to attend court to testify. Getting your own expert witness would be best of all, but don't make the mistake of hiring an expert, and then rejecting his findings. 

Showing up in court asserting your rights as a father or mother, arguing that a particular plan is in your children's best interests, and having no evidence whatsoever to back you up other than your own promises, usually isn't going to cut in in the face of conflicting CAS sworn evidence. 

As a lawyer who represents fathers and mothers in child protection proceedings, I firmly advocate for my client's rights, and their views of what is in their children's best interests. However, my clients need to give me evidence that permits me to sell the court on the correctness of their arguments. So as soon you as father or mother learn that CAS is showing interest in your family, you should start compiling evidence that will assist you and your children in court much later. 

Sunday, November 1, 2015


In the "good old days" (which often weren't so good), most of us died relatively poor. We might hopefully have been rich in life accomplishments, and family or friends, but financially speaking there often wasn't a whole lot left to divvy up among those who survived us. 

With significant increases in home ownership, and especially significant rises in the equity held in those homes in Canada's major urban centres, if you die owning a mortgage-free house, you now often die rich. Plus there may be life insurance and investments to distribute. This is all great for one's survivors, but not so great if family relationships are already a little strained at the time of passing. 

In the old days, even if beneficiaries of estates were inclined to squabble over who got what, they did not often retain legal counsel to do so if the legal fees would outweigh the money in dispute. But now with estates frequently running into the hundreds of thousands of dollars (or more) in value, "lawyering up" is becoming more common. 

As an estate litigation and dispute settlement lawyer, I've found having some background in drafting wills and powers of attorney for clients has helped me assist families in deescalating disputes before they start, and managing disputes if they are already ongoing. Here I offer you five basic but key tips to deescalating actual or potential estate family feuds.

Tip #1: Picking the right executor for your will may be more important than picking the right beneficiaries. I find people often spend months of time debating who should or should not receive that prized china tea cup in a will, but spend about five minutes (literally) determining who should act as executor and estate trustee. Your executor is THE key player who will determine whether your estate is distributed hassle free, or with acrimony and lawyer involvement. Picking someone who is relatively impartial (and ideally not a major beneficiary, but who is compensated for his or her effort), and has people skills, is the usually the best strategy. 

Tip #2: Don't completely exclude anyone who is deserving from your will. The more people you "cut out" of your will who might usually be expecting a gift, the more you heighten the chances for one of them challenging the will. You definitely don't need to treat everyone equally (at least under Canadian common law, as in Ontario), but if you have three children, and you give two of them $100,000 each, and the third one nothing, you are asking for trouble. Even if you have good reasons for doing so. 

Tip #3: Once a dispute has started, quickly get legal advice but try to prevent it going to court. A lawyer's opinion is a bargain compared to the hassle and expense it can later save you. However, dragging a case (or being dragged) into court is never a bargain, and will take at least months and possibly years to resolve. Once that litigation freight train starts heading down the track, it can be very difficult to apply the brakes. 

Tip #4: If you are in court, keep open a dialogue with the other side(s). While this tip might appear obvious, my experience is that many assume that once a matter is in court, they should just "let the court sort it out" and stop speaking to the other parties. It's unlikely a court will actually be able to sort it out in a definitive way - a court might clarify the issues, and resolve some of them, but definitive resolution could require many, many years since even if you are successful at trial, an appeal is possible, so keep the lines of communication open.

Tip #5: If you are involved in a contested court hearing, ensure you have solid evidence to support your position beyond just your oral testimony. It's reasonable to assume that judges want to make "just" and "fair" decisions, but they can only do so based on the law and evidence before them. Even if the law is on your side (for example, that a properly executed will is valid), prepare to back up your position with lots collateral evidence. Judges love documents - as they're less likely to lie than witnesses - so try to produce some supporting your position. Other witnesses backing up testimony will also help. You might also need expert witnesses. You will make your legal bill lower and greatly increase of your chances of success in court by helping you lawyer locate the documents and witnesses you need to present a compelling case.