How Should I Decide Whether I Should Plead Guilty?

New novel by a Toronto criminal defence lawyer.

Most people who are charged with an offence in Canada plead guilty. Not the vast majority like in the United States where it's commonly suggested that 90% of those charged plead guilty - perhaps because of the massive penalties they risk in going to trial rather than agreeing to a reasonable negotiated sentence on a plea. In Canada, the rule of thumb is that you should get about a 1/3 sentence discount on an early guilty plea - though sometimes you can do a lot better than that, like completely avoiding a criminal record through receiving an absolute or conditional discharge,as compared to receiving a fine (and a record) after trial. And sometimes you don't do better at all. 

When I was serving as a Federal Crown Prosecutor, how good of a deal I wound up offering an accused on a plea would depend on lots of factors, like how strong I believed my evidence was, whether there were technical problems with the case like a potentially illegal search or inadmissible statement, and what I thought of the future prospects of the accused for staying out of trouble. Sometimes, how effective a negotiator the defence lawyer was could play a significant role.

Now that I'm an Ontario criminal defence lawyer myself, I view Crown-defence negotiations as a very important part of developing a solid defence. I only undertake them after a careful review of all the evidence and other materials in a case, so that I understand a case's strengths and weakness from both the Crown and defence perspective. Since relationship building is the key to any successful negotiation, ideally I will have an already established rapport with the prosecutor, or will be able to build such a rapport as I demonstrate my complete understanding of the facts and law in a case. These negotiations can have a significant pay off even after trial, as they can limit the maximum penalty a prosecutor will seek at trial (as well as providing a better deal on an early plea), narrow the contested issues at trial, and occasionally convince the prosecutor to completely drop all charges because of all the factual and legal problems with a case. How should you decide whether to plead out?

1. Did you really commit the offence you are charged with? Note this question isn't asking if you did anything of a questionable nature, but rather did you do what they claim you did - including whether you intended to do it if that's an essential element of the office. If you're innocent, you shouldn't be pleading guilty. And you shouldn't be thinking that just because you've been charged with an offence, "the system" will inevitably find you to be guilty of it. When I was serving as a Federal Crown Prosecutor, I would from time to time be given files where the accused really was innocent; I did the only thing ethically possible - I dropped the charges. But prosecutors need to be very sure of your innocence before they will do that - thus the importance of negotiations through your defence counsel.

2. What kind of penalty can you expect after trial, compared to what can be negotiated for an early plea? Sometimes you can get a great deal for an early plea, other times the deal offered may be no better than you would receive after trial so that there really isn't a lot of risk in taking the case to trial. I highly suggest retaining a criminal lawyer to negotiate on your behalf; the cost may be fairly reasonable, those lawyers know how much offences are really worth in terms of penalty where you've been charged (the practical tariffs vary a lot across Canada even for identical offences), and they've built relationships with the prosecutors through which they can best plead your case. Certainly it's possible to see what you can get by yourself without a lawyer, but it will be almost impossible to tell whether it's a good deal or not.

Do be aware that the judge always has the last say, so just because the Crown and defence agreed on a deal doesn't mean the judge has to accept it. But it's also true that if the Crown and defence don't agree and go in on an open submission where each pitch to the court what they respectively believe the penalty should be, the judge might pick the defence position if it's the most reasonable.

3. What kind of consequences are you trying to avoid? If you're trying to avoid any type of criminal record because you don't already have one, and all the prosecutor will offer is resolution outcomes that lead to you getting stuck with a record, then taking the case to trial may maximize your chances of avoiding a record - although you could still pitch the judge on that result on a plea, even if the prosecutor disagrees with you. If you're trying to avoid a lengthy jail sentence, again the position of the prosecutor on a plea will drive your decision; if the prosecutor demands lots of jail even on a plea - and in fact that seems a likely outcome upon conviction - you might be best off going to trial and trying for an acquittal.

4. Can you financially afford to go to trial? If you are planning to hire a lawyer anyway to review your case and conduct negotiations with the prosecution, you'll find that taking a case to trial will not massively increase your costs assuming your matter is not extremely complex. Most trials can be finished in about a day or less of court time. Most lawyers will require at least a day of their time - spread over a few weeks or months - to review your case, consult with you, and conduct negotiations with the prosecution. So yes, going to trial might double your legal fees, but it will only be if you are charged with a very serious offence with a complex set of facts that going to trial could be a few times more expensive than negotiating a plea.


5. Are you trying to avoid publicity by not going to trial? While it's true that sensational facts will generate some trial publicity in the media, those same facts are going to generate the same publicity on a guilty plea. The publicity might be more limited in time if you plead guilty quickly and the sentencing happens right away, but the mere lack of a trial won't wipe out the potential for public attention. Because there are now so many stories competing for the media's attention, unless you're already a famous public figure or are alleged to have committed a truly heinous or bizarre act your criminal charges are unlikely to attract media notice. If you are in a larger city, there will probably be nothing in the press. If you're in a small town with a police files page in the local paper there could potentially be a two or three line write up, but sometimes your name won't even be used. Pleading guilty isn't a good way to avoid publicity.

6. Do you just want to put it all behind you and get on with your life? I personally think this is a pretty good read to plead guilty, but only if you really are guilty and are able to negotiate a reasonable sentencing deal.

The lesson here is don't let your plea be driven by misassumptions. Hire a criminal defence lawyer to negotiate for you, or at least explore all your options including pinning down an exact sentence on a plea, before you make up your mind on what to do. 

Yes; No; Maybe: Three Responses to Use When Stopped by Police

Police stop 210 km/hr race involving Ferrari 599 GTB. Photo credit: www.wordcarfans.com.

Sooner or later, regardless of how "law abiding" we might thinking of ourselves, we're all going to get stopped by the police. Usually it's going to be when we're driving a vehicle. Occasionally it might be when we're walking in a certain kind of neighbourhood or passing through a border crossing. Some of us might be stopped more often than others.

As a white boy from the burbs, I used to think of the so-called offence of "driving while black" (DWB) to be a fantasy. That is, until I became a Federal Prosecutor and saw the results start to pass through my courtroom. One of my Federal Prosecution Service colleagues - now a judge - who happened to be black, and who could afford to drive nice cars, really tilted my worldview when he told me about all the times he'd been pulled over on the highway by the police. One officer was so embarrassed to find out he was a prosecutor on his way to court, he gave him a lights flashing and sirens wailing escort the rest of the way.

But enough talk of racial profiling - though I should mention it usually isn't even a conscious thing, it's something we all have to work at so that conscious reason prevails over sub-conscious feeling - on to my three police stop answer tips of the day.

I spend a fair bit of my time as a Cornwall criminal lawyer and Brockville criminal lawyer (and sometimes in two satellite courts as a Morrisburg criminal lawyer and Alexandria criminal lawyer). For those of you not familiar with Eastern Ontario, and who like to play with Google Maps, you can check out the 401 Highway blacktop ribbon the stretches between those outposts of civilization and concentrations of Tim Hortons. It's the busiest highway in Canada, and its drivers have various ways of attracting the attention of Her Majesty's law enforcement personnel - most notably by demonstrating considerable excess where the posted speed limit is concerned.

When you're stopped there - or anywhere - you need to know what to say.

"Yes."
"No."
"Maybe."

Got that? Those are the three answers you need to remember to the following questions you might get asked when the police stop you.

Question #1: "Can you give me some identification? Tell me who you are, and where you live?"

Answer #1: "Yes," or "Yes, officer" if you prefer. 

If you're driving a vehicle, you don't have any legal choice on this one. If you're a passenger, a pedestrian, or found somewhere else, I concede this one could be legally arguable, but do you really want to wind up detained while the police figure our who you are? I recommend you always identify yourself.

And do not give a false name or address. I continue to be amazed by the number of people who do this, and wind up criminally charged with obstructing justice - a very serious offence, often more serious than the original offence the police were investigating. If you really, really don't want to give the police your name (and you aren't driving anything), then say nothing - but don't lie. You might wind up detained, but you shouldn't get charged over saying nothing.

Question #2: "Do you consent to my searching your car/truck/trunk/backpack/apartment/house?"

Answer #2: "No."  

This answer is a little trickier than the first answer, because you need to watch for what form the question is posed in. If you get the more common form of the question: "Do you mind if I take a look in your car/truck/trunk/backpack/apartment/house?" then the necessary answer transforms itself into "Yes, I do mind."

Never consent to a search. Whether it's requested as part of a casual conversation with police, or through the police producing a formal Consent to Search form that you are asked to sign, just say no.  For those who are really interested in all the legal problems involved in consent searches, check out chapter 6 of my books The Investigator's Legal Handbook or Le manuel juridique de l'enquêteur, available in public, university and college libraries throughout Canada, and in a few university libraries in the U.S.

However, never try to physically stop the police from conducting a search. They might in fact have valid authority to search you (if they have arrrested you), parts of your car (if they have seized it - though the law here gets a bit complicated), or your residence (with a search warrant, or rarely with exigent circumstances like when responding to a 911 call). Plus, like giving a false name when answering question #1, you're likely to wind up getting charged with obstructing justice if you try to stop a police search - even an illegal one. Leave it to your lawyer to argue the merits of the search at trial if the police find anything.

Question #3: "Do you mind answering a few questions?"

Answer #3: "Maybe." 

The reason this one is the trickiest question of all is that sometimes, in response to regulatory requirements governing things like automobile insurance or a hunting licence or an environmental permit or when driving through a border crossing, you may be obligated to provide some information beyond your identity. There can be some very negative consequences from completely refusing to cooperate.

You might also be obliged to take a sobriety test if you are in control of a vehicle.  It's usually best to go along with demands for sobriety tests, since refusing is a serious offence itself, the officers need some basis to ask you for the test in the first place, and your lawyer can fight at trial over whether you should have been asked in the first place.

One possible response is to ask in response: "Do I have a choice about answering the questions? Must I answer them? Why are you asking them? Why do you need to know?" You might not get a clear answer, but if the answer is "No, you don't need to answer" then that would settle it.

If you think the situation is serious, you could say "I'd like to talk to my lawyer before answering." Be aware that while the police need to give you the opportunity to call your lawyer, the courts have held that they don't have to stop attempting to get answers from you while you await a call back from your lawyer.

If in doubt, the best response to Question #3 is to say nothing, and call a lawyer, but don't completely rule out answering questions in the future - which could be many hours in the future - depending on the legal advice you receive. Generally, the police cannot force you to answer any questions for a criminal investigation, but might be able to demand administrative information from you for certain regulated activities - thus the importance of knowing why they're asking.

I know this #3 answer isn't very clean or easy to apply. This is why people get themselves in trouble with the police and other law enforcement authorities by usually saying too much, but sometimes saying too little. It's also why we lawyers are able to earn a living. Give me a call

Three Things You Need to Know About Criminal Law in Canada

Photo source credit: lucywho.com

"In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders. These are their stories."

- Opening narration to every Law and Order episode, as spoken by Steven Zirnkilton. 

From all the talk of criminal law in the movies, on television and within those always salacious crime thriller novels, you'd think we'd all know lots about criminal law. Lots more, in fact, than for any other area of law. How many movies have you heard of with the compelling title: "Property Law"? Or how about a t.v. show called "Torts and Contracts"? Don't really grab you, do they?

I think we can certainly learn something from movies, t.v. and novels about crimes and the people who commit them. Sometimes we learn a bit about the "justice system" - although that most sonorous of Law and Order voice overs conveniently omits any reference to the defence bar of which I'm a member. But learn about the criminal law? 

The problem is that the criminal law - like all other types of law - is an intangible. The ghost in the machine. Nothing to look at. Nothing to touch. Just a blanket of nothingness which envelopes us, supposedly keeping us all safe and dealing with those who transgress society's norms. Movies, t.v. and books can show the crimes. They can show the criminals. Occasionally they can give glimpses of the larger justice system. But what of the criminal law is there to show?

Notwithstanding this failure of popular culture to educate - as shocking of a conclusion as this may be to all of my readers - if we're ever on the receiving end of the justice system, be it for traffic offences or bank robbery, understanding what exactly this criminal law thing is becomes very important. The challenge is that it's become one of THE most complicated areas of the law. 

Now I know that might be said about a lot of legal areas, but the majority of cases that drag through the courts tend to be the criminal ones - in part because the courts are the only ones who can pass final judgment on the guilt or innocence of an accused, and also because the government bears most criminal justice costs (unlike civil justice where the parties usually pay their own costs). That in turn produces a whole lot of criminal case law where judges are rendering decisions on everything from the validity of search warrants to how two words buried in the middle of a Criminal Code thousands of pages long should be interpreted. Likewise, Parliament loves constantly creating new criminal offences, tinkering with old ones, enacting modified criminal court procedures, and generally trying to show the public that it takes crime seriously, which creates a whole lot of criminal legislation. Parliament tends not to worry as much about whether the public thinks it takes property law seriously. 

The good news is that there are a few easy to understand and easy to remember principles of the criminal law that have been longstanding constants, regardless of all that criminal case law and legislation that has been cluttering the legal landscape lately. Today I offer you three of those principles. In future posts, I'll give you a few more. 

1. Ignorance of the law is neither a defence nor an excuse. What this principle means for you is that if you have any doubts over whether something you are about to do is legal, you should always check the state of the law with at least an appropriate government official and perhaps with a lawyer before acting. Otherwise, you act at your own peril and risk being convicted of an offence. This rule applies equally to new changes in the law, very complex laws, or very obscure laws.

2. You are presumed to intend the logical consequences of your voluntary actions. Therefore, if you choose to hit someone and that person dies, you could be found guilty of manslaughter or murder - not just assault - depending on your original intention in striking the blow. 

3. Exercising due diligence in order to avoid contravening the law is a defence in most regulatory offence matters. Your conduct will be assessed against what the reasonable person would have done in your situation. This means that driving with a speedometer you knew to be broken will not usually work as a speeding defence, but having your engine race uncontrollably despite your best efforts to stop your vehicle might be a defence.  

Stay tuned for next time, when I'll share three things you should know about the criminal law if you're stopped by the police. 

Why Immigrants Need Your Help

TN Castel Felice, the immigrant ship which brought my parents to Canada. Photo credit: Reuben Goossens. 

I'm the child of immigrants. Their taking a chance on Canada worked out well for them, and it worked out very well for me. Within a couple of days of getting off the boat which had whisked them from Scotland - I'm not that old, but they did manage to come over on one of the last immigrant ships (better luggage allowance than on a plane, they told me) - they had nice place to stay, a car, and most importantly decent jobs. But the facts that they were white, native English speakers, and British subjects of the "right" kind certainly made things easier for them.

Without their coming to Canada, I would probably have never gone to university - no one else in my family ever did, nor has anyone's children or children's children who stayed behind, with one notable exception. Instead, I wound up with three university degrees. But children of immigrants often do quite well in Canada. It's the initial struggle of the first generation that increasingly concerns me.

I had lunch the other day with a friend of a friend of a friend. He spoke perfect English, Mandarin and Hindi. Yes, Mandarin AND Hindi. Used to publish a Chinese newspaper for Hindi speakers in India back when he lived in China. Happened to have a Ph.D. in communications from a good American university. Oh, and did I mention the M.P.A. from a Canadian university, obtained after the Ph.D. because he thought it prudent to have a Canadian post-secondary qualification as well.

He'd just become a Canadian citizen, and was proud of that achievement. Proud of the country he chose, rather than was born into. Proud that he had beat out a whole lot of other applicants in being granted the right to live out the rest of his days in Canada. Problem was, he couldn't find a job in his field.

Now this wasn't a little, "I've been unemployed for a few weeks" kind of problem. Or an "oh, I have to run the company, everything else is beneath me" kind of situation. This was a he'd been looking for years, and years, and years type of situation.

He become so desperate, he was thinking of returning to his country of birth. After so many years away. He didn't want to wind up like a friend of his - another Ph.D. graduate - who had recently committed suicide because although accepted as an immigrant to Canada, he couldn't find a job. And I assure you, this is a true story - I wish it weren't.

The only advice I could offer him was to go into business for himself. It perhaps wasn't great advice, but turned out to be the same advice his girlfriend - another Ph.D graduate and immigrant, but one who wasn't a visible minority, and most importantly one with a job - had given him. He wasn't thrilled by the prospect of becoming an entrepreneur - it wasn't why he had worked so hard at his studies.

Lots of finger pointing has gone on over Canadian immigrant policy from the days the first immigrants showed up in Canada, mainly involving claims that Canada: (a) accepts too many of a certain type of people, (b) doesn't accept enough of certain types of people (sometimes the same people who it is claimed we accept too many of), or (c) shouldn't accept anyone at all as immigrants. Fortunately, very few seem to support the third view - most just argue over who we should be accepting or not accepting.

For me, immigration has never been primarily about addressing our low birth rate (most immigrants these days are arriving at an older age and having smaller families themselves), or our job market deficits (although this is an important function). It's about keeping Canada invigorated and full of fresh ideas and fresh faces. The alternative to immigration can be stagnation.

But I don't believe it's solely the responsibility of government to make arrangements for these immigrants to "fit in." Sure government has a role, but it's also each and every one of our personal civic duties.

Currently I'm volunteering with T.R. Leger Immigrant Services in Cornwall, Ontario, which helps new Canadians learn the official languages and also provides "settlement services" like assistance in applying to become a citizen. They service an immense area comprising everything in Ontario east of Kingston that's outside the Ottawa urban area.

Since I'm an immigration and refugee lawyer practicing throughout Eastern Ontario - and immigration and refugee lawyers outside the big cities are rare creatures - I try to help all those with problems at one of the three Eastern Ontario land border crossings (Lansdowne, Prescott & Cornwall), the Ottawa International Airport, or those who are already in Canada but need to renew their status or apply for a different kind of immigration status, like visitor visas, study permits and employment permits. Sometimes I work on refugee claims and applications for permanent residency under skilled worker, experience class, family class or business class programs (including investor, entrepreneur and self-employed categories).

Immigrants need to do a whole lot of adapting to our society. The fact they have often left everything dear to them behind to take a chance on Canada demonstrates in the strongest possible terms their commitment to becoming "Canadian." But adaptation is a two way street.

As they change for us, we need to change for them. Integration or assimilation are all just words describing a process of immigrants changing society as society changes immigrants - it's never a one-way process, as much as some might wish it was. No matter what corner of urban or rural Canada (or any other country) you inhabit, I urge you to ask yourself: "what can I do to make an immigrant feel like s/he belongs?" Because even if you haven't been thinking about it - and I certainly didn't used to myself - your future depends on that immigrant deciding that s/he made a good choice. That Canada chose them as much as they chose Canada.

Income Tax Law in Canada: Five Things You Need To Know

Card Money from New France. Photo Credit: The Canadian Paper Money Society.

People get really worked up about taxes. Crazy kind of worked up. Shoot yourself in the foot, pay a dollar to save a penny kind of worked up. It doesn't have to be that way.

When I was working as a federal tax prosecutor, I would see people construct what they thought were these elaborate evasion schemes with the intent of stopping the government from getting any of "their" money. Turns out if they had been keeping proper records, and filed a proper tax return, the government would have owed them money!

They expended immense time, effort and expense, fearful the government was going to grab a big chunk of the income they had worked so hard to bring in, only to find out when we uncovered whatever evasion scheme they had dreamed up that they hadn't been committing  an offence after all. Didn't even civilly owe taxes. They did what they did out of ignorance, and had they been better informed about Canadian tax law they would have worried a whole lot less, and been financially better off.

Now a private practice tax lawyer in Cornwall and Eastern Ontario, I believe that disputes with the Canada Revenue Agency (CRA) can often be avoided with a little knowledge on the part of the taxpayer. Here are five things you need to know about income tax law in Canada.

1. The fact that taxation in Canada is based on a self-reporting, self-assessment system fundamentally shapes the powers, modes of operation, and rulings of the CRA and the courts. In some countries, the government tells you what taxes you owe - in Canada, you tell the government what taxes you owe. Sure the government may eventually challenge you on it - but often it won't. As a result, you need to hold onto your tax records for quite a long time in case you do get asked for them, and you need to be aware that the government possesses some pretty intrusive powers to make you and your associates talk about your taxable income.

 2. Everyone does not have to file a tax return every year. But corporations (other than charities) regardless of their tax position and individuals who have tax payable, a taxable capital gain, or who have disposed of capital property in that year must file. There are legal benefits for individuals filing every year even when they do not have to pay any tax for a particular year.

3. All "residents" of Canada are taxed on their worldwide income. The Income Tax Act deems you to be a resident if you sojourn in Canada for over 182 days in a taxation year, or you have certain connections to the Government of Canada such as being a member of the Canadian Forces. Sojourning that leads to deemed residence can amount to multiple, unconnected visits to Canada which add up to 183 days. And even if you are not in Canada for over 182 days in a year, the law may still find you to be a resident if your dwelling place, family connections, or personal property and social ties are in Canada. Although a tax holiday through moving outside Canada is attractive to a lot of Canadians, in order to terminate your Canadian residency you must sever as many ties to Canada as possible, and usually live outside of Canada for over two years.

4. The General Anti-Avoidance Rule (GAAR) of the Income Tax Act empowers the CRA to deny a tax benefit where a transaction is not undertaken for primarily bona fide purposes other than to obtain a tax benefit. The bona fide purposes do not have to be related to business reasons, and for example could be for family purposes. The GAAR will not apply where no provision of the Income Tax Act has been misused and there has been no abuse of the Income Tax Act read as a whole. When the GAAR is or is not triggered is therefore fraught with uncertainly, and it's wise to seek an advance ruling from the CRA before proceeding with a questionable transaction that might trigger the GAAR.

5. If you disagree with the Notice of Assessment you have received from the CRA, you usually have only 90 days from the date of the mailing of the Assessment to file a Notice of Objection. The first stage of a tax appeal is before an Appeal Officer within the CRA. Should you not be satisfied with the result, you have 90 days from the date the CRA mails the Notice of Confirmation to file an appeal with the Tax Court of Canada; for relatively small amounts in dispute you may choose the “Informal Procedure” which will usually be much quicker than the “General Procedure” that must be used for larger amounts of federal tax in dispute. You may seek to appeal a decision of the Tax Court to the Federal Court of Appeal within 30 days of the Tax Court judgment issuing. If you chose the informal procedure there is no route of appeal, but a more restrictive “judicial review” may be sought. After the Federal Court of Appeal, you may seek leave to appeal to the Supreme Court of Canada, but leave will usually only be granted where the issues is of "national importance."

If you're unsure about how to handle you taxes, you should: (1) call the CRA - it's an endless source of free, detailed advice; (2) see an accountant; or (3) see a lawyer who deals with tax law. Be aware that there are a lot of accountants out there who deal with tax issues and not many lawyers. For routine tax matters an accountant will usually be the way to go if you aren't getting the answers you need from the CRA, but for heated disputes or risky transactions a lawyer is the one who can give you formal legal advice and represent you in court.

Child Support Canadian Style

There have been two especially bright spots in the evolution of Canadian family law over the last fifteen years: standardized rates of basic child support, and robust enforcement mechanisms. Fifteen years really is a little hiccup in the legal temporal continuum, but it's made a big difference in the spectrum of things one can effectively fight about or avoid in family law. Yes, it's still possible to fight, and to avoid, but both tactics are considerably less effective than they used to be when it comes to child support.

All parents have a joint responsibility to financially support their children, according to their respective means and child expenses. Ontario Child Support Guidelines (and their equivalents under federal and other provincial laws) mandate fixed support payments according to income of payor, subject to limited exceptions for shared custody or undue hardship, and in addition to special and extraordinary expenses (things like orthodontists, summer camps, or college expenses). Basic upport is paid according to the “table amount” which is pegged to income and other expenses are split between the parents according to ratio of incomes.

For example, if the mother earns $50,000, the father $10,000 per year, and the child lives with the father most of the time, then extraordinary expenses would be split 80-20. The mother would also pay the father monthly support at the table level for someone earning $50,00 per year. And the payor must provide the recipient with confirmation of income each year, such as from line 150 of an Income Tax Assessment.

Support enforcement is possible with a court order and the assistance of the FamilyResponsibility Office (FRO) (or equivalent in another province) to garnish a payor’s employed wages or bank account, seize RRSPs, put a lien on the payor’s house or other property, suspend the payor’s driver’s licence or federal licences/privileges like a passport, deduct support debt from income tax refunds or EI benefits, or even jail a defaulting payor for contempt of court. Interjurisdictional support enforcement within Canada is now coordinated among provinces - so you can enforce a support order against a parent who has moved to another province in a fairly straight forward manner. Out of country enforcement is also possible, but it gets a lot more complicated.

Support calculation and enforcement will still be challenging against a parent who quits his job and flees the country - though no longer having a passport could put a crimp in his long term plans - and those who are self-employed will continue to be a bit more difficult to pin down as to income and garnishment, but for the majority of Canadians who will live in Canada throughout their lives, and hold jobs as employees receiving fairly predictable fixed pay cheques, calculating and collecting child support is now mainly a question of time and effort, rather than some kind of lottery.

Two good links to leave you with today:

Because LifeGoes On … Helping Children and Youth Deal with Separation and Divorce - a good Health Canada publication of a few years back which would have been long forgotten in a dusty federal government publication warehouse were it not for the wonders of the Internet (it seemed in my previous government jobs we would get 100,000 copies of a booklet printed, and manage to give away 10,000 copies);

www.mysupportcalculator.ca - gives you an accurate estimate of spousal and child support owing according to income and where you live within Canada, brought to you by the people who create family law calculation software for lawyers.

Everyone Doesn't Have to Lose in Family Law: Child Custody and Access

Photo Credit: Glen Campbell. 

If people have been unhappy about lawyers and the courts for a long time, they've been especially unhappy about outcomes in family law cases - though for only the last few decades, since prior to that time family law was a niche practice in a BNFD world - before no fault divorce. 

This dissatisfaction is unfortunate, because the family lawyers are among the more committed members of the profession I know - there isn't a lot of glory in it, the clients often can't afford to pay much, and protracted litigation often leads to lose-lose results. It's also likely the area of legal specialization with the highest lawyer burnout rate - they usually don't quit law completely, they just get out of family law, adding to the already serious shortage of lawyers willing to take on these kinds of cases. 

I practice family law myself at least in part because of the shortage of available lawyers, and because I believe the results are perhaps as crucial to client happiness as any kinds of legal results can be. Because this is a relatively new area of the law, it remains a very dynamic one where courts and legislatures are constantly creating new principles. One set of principles which has stabilized of late involves child custody and access.

Everyone now agrees that the best interests of the child are the key consideration when making decisions about child custody and access. The law throughout Canada on this topic is pretty similar, but what follows focusses especially on Ontario law.

Custody and access can be agreed upon Informally, in a Parenting Plan, in a Separation Agreement, or by Court Order. Choice of means to agreement depends on ability of parents to communicate and the need for future enforceability (the more formal the agreement, the more enforceable it will be). Negotiation, mediation, arbitration, and collaborative family law are all viable, less expensive, and potentially more effective alternative dispute resolution (ADR) processes to court-based processes.

Having custody means you can generally make decisions about care, education and religious instruction unless agreement or court order says otherwise – but views of non-custodial parent can’t be completely ignored and the non-custodial parent has right to general information about these decisions and welfare of child. Joint or Shared Custody means both parents share decision making – although it may not mean the child spends equal amounts of time living with each parent. Supervised Access can be agreed to or ordered by a court where there are concerns about child safety, parent safety, or child return.

The federal Divorce Act s. 16 considers the best interests of child to be “as determined by reference to the conditions, means, needs and other circumstances of the child.” Courts are prohibited from taking past conduct of a parent into account unless relevant to ability to parent. Sub-section 16(10) promotes maximum contact with each parent. The provincial Children’s Law Reform Act governs where there are no divorce proceedings. It's more explicit than the Divorce Act in defining “best interests,” including the child’s preferences, stability of environment, and abilities of parents.

Courts will often maintain the status quo, so initial informal arrangements concerning custody, access and parenting can become very important factors in the longer term. While a court may order an Assessment of the needs of the child and ability and willingness of the parties, such assessments are time-consuming, expensive, intrusive and will not finally determine custody and access issues (which are left to the court to decide).

A court order may also be sought to involve the Office of the Children’s Lawyer, either to have a government-funded lawyer appointed to represent the interests of the child (unlikely if the children are very young and can’t express preferences), or to have a social worker assigned to conduct a Clinical Investigation which will be similar to a Custody and Access Assessment except be funded by the government – however the Office of the Children’s Lawyer can decline a file. 

While it's hard to say whether people fall to fighting more over money or children when relationships break up, it's certain that disputes over children have the potential for lasting much longer and taking a much greater emotional toll. The legal lessons of custody and access for separating parents are:

• ideally, be aware of the law of child custody and access before you separate;
• try to take an objective view of what others will perceive to be in the best interests of the children; 
• structure your proposed parenting plan around those best interests;
• don't take an extreme position that forces a court to be the final decision maker about those best interests, instead be proactive in attempting to agree on a plan that is acceptable to both parents;
• use every ADR tool available to retain some control over the form the final custody and access agreement will take, and to limit your legal fees;
• it will be expensive, time consuming, and difficult to enforce every detail in a child custody and access agreement through a court - if you run into compliance difficulties, return to those ADR tools and use the courts as a last resort.