The Theoretical case of R. v. Patrick Brown

Facts:

Complainant A was a high school student aged 18 while the accused was 29 years old.  She did not disclose to the police at the time of the incident, and reported under condition of anonymity ten years after the alleged incident occurred.  Her evidence is that her and a mutual friend met the accused at a bar.  They returned to the accused’s  residence and he provided them with alcohol.  The complainant took a tour of the accused’s home.  When the pair entered the bedroom, the accused removed his pants and asked the complainant to perform oral sex, which she did for a short time before stopping.  The complainant told the reporter “It was like a controlling thing… like I just remember I wanted to go, but that wasn’t happening.”  She also said that she then left his house and went to a nearby friend’s place.

Complainant B was a university student who was employed by the accused while he was a member of Parliament in 2012.  He was 34 at the time and she was 18.  They met on a flight and continued to converse briefly through Facebook.  She applied for a position and was hired to work in his Barrie constituency office.  After an event the complainant became intoxicated at a local bar and returned to the accused’s home in Barrie.  Both parties ended up in the accused’s bedroom and the complainant told the reporter:

“The next thing I know he’s kissing me. Sitting beside me, kissing me and then I was, I kind of just froze up. He continued to kiss me and he laid me down on the bed and got on top of me. I remember consciously trying not to move my mouth and I was just not moving, so I was laying there immobile and he kept kissing me,”

“I felt it was sexual. I could feel his erection on my legs when he was on top of me so I felt that it would have gone to sexual intercourse if I had not done anything,” she said. “I would characterize that as a sexual assault.”

“That scenario, like of a very inebriated young employee in the bedroom of her boss, alone with him, who hasn’t had a drop of alcohol all night, just that’s an intimidating situation and I was not sure what to do about it,” the former staffer said.

She told him to stop, saying she had a boyfriend and told Brown to take her home, which he did, driving her back to her parents’ house.

The complainant continued to work for the accused the following summer, and further alleges that during that period the accused made other inappropriate comments about having sexual relations with others.

Sexual assault law in Canada

Sexual assault

section 271

Criminal Code (R.S.C., 1985, c. C-46)

Everyone who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.

Elements of the crime:

Actus Reus

The actus reus of sexual assault consists of unwanted sexual touching. It is established by proof of three elements: touching; the sexual nature of the contact; and the absence of consent.

The first two elements are objective, and it is sufficient for the Crown to prove that the accused’s actions were voluntary. It does not have to prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour.  The absence of consent is subjective and is determined by the complainant’s subjective internal state of mind towards the touching when it occurred.

“Consent” for the purposes of the sexual assault provisions means the voluntary agreement of the complainant to engage in the sexual activity in question.

However, no consent is obtained where

  1. the agreement is expressed by the words or conduct of a person other than the complainant;
  2. the complainant is incapable of consenting to the activity;
  3. the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
  4. the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
  5. the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. These provisions are not to be construed as limiting the circumstances in which no consent is obtained.

Furthermore, no consent is obtained where the complainant submits or does not resist by reason of:

  1. the application of force to the complainant or to a person other than the complainant;
  2. threats or fear of the application of force to the complainant or to a person other than the complainant;
  3. fraud;
  4. the exercise of authority.

The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. An unconscious person cannot satisfy this requirement, even if consent is expressed in advance.

A victim of a sexual assault is not required to offer some minimal word or gesture of objection. A lack of resistance need not be equated with consent.

There is no defence of implied consent to sexual assault in Canadian law.

Mens Rea

The mens rea of sexual assault consists of two elements: the intention to touch the complainant; and knowledge, recklessness or wilful blindness to a lack of consent on the part of the complainant.

As with the actus reus of the offence, the absence of consent is an integral part of the mens rea, but now is considered from the perspective of the accused.  In order to make out the defence of honest but mistaken belief in consent, thus denying the mens rea required to commit sexual assault, the evidence must show that the accused believed that the complainant communicated consent to engage in the sexual activity in question. The exculpatory effect of consent in relation to the mens rea of the accused is limited by the common law and by statute.

It is not a defence to a sexual assault related charge that the accused believed that the complainant consented to the activity that forms the subject matter of the charge where the accused’s belief arose from the accused’s (a) self-induced intoxication; or (b) recklessness or wilful blindness, or where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Defence

Case law: R. v. Ewanchuk

Consent is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.” As noted by Major J., speaking for the majority in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para 27, 131 C.C.C. (3d) 481, consent is determined solely by reference to the complainant’s actual state of mind.

The defence of mistaken belief in consent is a different matter. It arises where the complainant has not consented to the sexual activity but the accused was operating under a mistaken belief that the “complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused”: Ewanchuk at para. 49. If the accused’s belief is found to be mistaken:

… then honesty of that belief must be considered. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent.  Any other belief, however honestly held, is not a defence. [Ewanchuk at para. 64]

An assessment of the mistaken belief in consent focusses on the accused’s state of mind. Nonetheless, s. 265(4) entitles the trier of fact “to consider the presence or absence of reasonable grounds for that belief” when assessing the honesty of the accused’s belief; and the defence is not made out simply by demonstrating a subjective belief on the part of the accused. As Major J. observed in Ewanchuk at para. 51: “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence.”

Analysis:

Actus Reus:

There was touching, there was a sexual nature to the contact, and the complainant’s have reported an absence of consent.

Both complainants were likely intoxicated at the time the alleged assaults took place.  In the context of sexual assault, the capacity to consent is straightforward and is a factual issue to be decided by the trier of fact.  A person has the requisite capacity where she has the ability to    understand and agree (or not agree) to engage in the sexual activity in question.  This is not a cognitively complex task.  Drunken consent is still valid consent, but in cases of extreme intoxication it has been found that consent was vitiated.  Based on the disclosures made by both complainants it would appear that they were intoxicated at the time, but still able to understand and agree/not agree to the activity.

It would be more difficult for the Crown to make out Complainant A’s lack of consent with respect to performing fellatio on the accused as opposed to Complainant B’s claim that the accused climbed on top of her.  Caveat: there is an enormous lack of information as to what transpired in the accused bedroom a decade ago.

For the purpose of this exercise, let’s assume that the allegations that have been raised are true, and that the actus reus is made out.

Mens Rea:

The accused had the intention to touch the complainant.  Assuming that the actus reus is made out the question then remains: did the accused have the knowledge, recklessness or wilful blindness to a lack of consent on the part of the complainant?

As Major J. put it in Ewanchuk, at 296:

“In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind, wanted him to touch her, but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence.  For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions.”

Thus, in the context of the mens rea of the offence, consent, “means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused.  The bare assertion by an accused of an honest but mistaken belief in consent is not a sufficient basis for considering the defence.  As Major J. put it in Esau at 296, “before a court should consider honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence.”  While this evidence often comes from the testimony of an accused, it can also come from the evidence of the complainant or other witnesses.  In determining this threshold question, my task is not to substantively evaluate the merits of the defence.  Rather, I am to consider only the “facial plausibility” of the defence.    Thus, in Ewanchuk, Major J. stated at 502:  All that is required is for the accused to adduce some evidence, or refer to evidence already adduced, upon which a properly instructed trier of fact could form a reasonable doubt as to his mens rea.

In this fact scenario does the evidence raise an air of reality that would create a reasonable doubt that the accused had the mistaken belief that the two complainants had affirmatively communicated by words or conduct their agreement to engage in sexual activity?    What would a jury decide in the case of the accused?

There is no evidence from the complainants or accused at this point that would indicate that anything at all was communicated.  From the evidence it appears as though the accused interpreted the fact that the complainants had returned to his residence and ended up in his bedroom as their consent to participate in sexual activity with him.  Without any further evidence it would be risky to put that before a jury and hope for an acquittal.  This is the area of criminal law that the lawyers own – the negotiation of a plea deal that will satisfy both the accused and the public with respect to the outcome.

That being said we have not heard from the accused.  What if his evidence that, in the case of the first complainant, that she had said something like “Can you show me your bedroom?  I want to show you what I can do when the lights go out.”  That would almost certainly give rise to a defence of honest but mistaken belief.  This scenario seems less likely in the case of complainant #2 whose statement read  “The next thing I know he’s kissing me.”    That being said there very easily could be other evidence that could be adduced that would lead to a successful defence of honest but mistaken belief.  Remember: the accused must only create a reasonable doubt in the minds of the jurors to avoid a conviction.  It is a very high bar.

This was certainly a tragedy – for the young women involved who had a negative sexual experience at a young age, for the accused whose reputation has been eviscerated after 22 years of incredibly hard work, and for the public who have experienced a range of emotions from moral indignation to outrage at the whole situation.  This is particularly hard given the fact that everyone will be left in the dark without a trial to provide some clarity to the events in question.  The passage of time greatly exacerbates the situation as well, serving to cloud memories and taint all of the evidence.

Ultimately, with no charges, and no civil suit, the matter will be tried in the court of public opinion in Barrie, Ontario.  It will be those constituents there that will deliver the verdict to the accused without any evidence or law whatsoever.  Perhaps it is fitting to end with the words of Gloria Steinham who said “Law and justice are not always the same.”  In this case, which is not really a case at all, nothing could be closer to the truth.

Contingency Fees

Contingency Fees

I have read some negative press lately about Contingency fee agreements between clients and lawyers.  I have been a personal injury lawyer for over ten years and I thought I would share my perspective.  I offer contingency fee arrangements for clients, but am not necessarily advocating for or against them per se.  I think it’s important for clients to have the option to choose from.

Why contingency fees?

If you have been seriously hurt as a result of an unexpected accident then chances are your life has changed dramatically.  There is an interruption in earnings that most people can’t afford for long.  Accident benefits and disability insurance proceeds may help to offset those losses but let’s not kid ourselves into thinking that there will be a total income replacement.  Just getting accident benefit carriers and insurance companies to pay basic benefits that people are entitled to can be challenging.  I have one case in recent memory where a young man lost the use of his right arm entirely.  His insurance adjuster put him in the minor injuries guidelines where his was only entitled to $5,000 in medical rehabilitation and no income replacement.  It took us months just to get him the basic coverage that he had paid for under his accident benefits policy.  Most, if not all, of the personal injury clients that have walked through my door are simply not in a position to pay the firm’s $3,000 retainer.  That’s just the retainer – regular bills for civil litigation will typically range between $20,000 and $50,000 per year.  In my experience personal injury clients are quite happy to have the case proceed on a contingency basis.

Lawyers prefer cash clients

From my perspective I would prefer a cash retainer from personal injury clients and have them take 100% of the proceeds of settlement.  I would issue monthly invoices and protect my cash-flow.  There would be no risk in the litigation for me.  I wouldn’t have to pay thousands of dollars regularly to fund the expert reports necessary to be successful in personal injury litigation.  I’ve invested literally hundreds of thousands of dollars in legal fees in cases that are by no means guaranteed to succeed.  I setup lines of credit to cover my overhead and to help manage my cash flow.  I’ve made close calls that didn’t work out – clients didn’t meet threshold or exaggerated their injuries only to be discovered with video surveillance by the defendant insurer.   I don’t recover any fee income from those cases – that work-in-progress literally disappears and I’m left wondering why I didn’t just spend time with my kids instead.

Should we cap contingency fees?

I take files on contingency because the reality is that there really is no other choice.  I’ve read recently that Mike Colle, MP from Eglinton-Lawrence put forth a bill that caps contingency fees at 15%.  That figure is completely ridiculous and shows a total lack of understanding of the issue from Mr. Colle’s perspective.  The reality of the situation is that if you capped contingency agreements at 15% you would be stripping disabled people of their rights and putting money into the pockets of insurance companies and their stakeholders.  That’s what we’re really talking about here:  how is it that we can take a vulnerable section of society, like a group of disabled people, and take advantage of them?  The answer: let’s hamstring the only people out there fighting for them so that we can keep more money in the banking and insurance industry.

Thankfully we have the Ontario Trial Lawyers Association out there who simply will not allow this to stand.  The contingency rates in Ontario are fair and in line with what lawyers across the globe are charging to assume the risks involved in personal injury litigation.  This bill will fail and the Association will continue to advocate for people that have been seriously injured and trying to get some semblance of their lives back.

If you are looking for the real story here – check out the deductible on awards for pain and suffering.  Basically a person who has suffered a permanent and serious impairment as a result of someone else’s negligence has to pay approximately $40,000 to the insurance company for absolutely no reason whatsoever.  Last I checked auto insurance profits in Ontario ranged between $3,000,000,000 and $4,000,000,000.  It’s pretty easy to figure out where that money came from..  and unfortunately it doesn’t seem to be enough.

Get rid of that deductible

I’m going to do my part and work hard and try to get as much as I can for people that have been hurt.  I can’t control what parliament does other than to cast my vote.   I hope that these issues raise awareness and that the Ontario government will look at getting rid of the deductible and standing up for the vulnerable people in this province that are being taken advantage of.  Like and share and create traction – these people really do need help and every little bit counts.

 

6 Things You Should Know Before You Buy a Condo

Purchasing a condominium is not the same as purchasing a house on its own lot. The following list sets out six important things to understand when you are thinking about buying a condo.

1) The Concept of a Condominium

The basic concept behind condominiums is that you purchase sole ownership of a “unit” in a project, together with joint ownership of all common elements of the project with other unit owners. The project is typically a high-rise building or a row of townhouses.

As a unit owner, you become a voting member of the condominium corporation. The condominium corporation elects a board of directors, which makes important decisions about the operation and management of the project.

Owners of condo units have different rights and responsibilities than owners of traditional houses. Condo purchasers must be aware that the use and enjoyment of a condo is restricted by a number of factors that do not exist when purchasing a traditional home on its own lot. However, condo owners are usually spared the routine maintenance problems that come with home ownership.

2) Restrictions on Use

The use and enjoyment of a condo is limited by three kinds of documents: the Declaration; the corporate by-laws; and the rules made by the directors. It is important to review these documents so that you know exactly what you are buying and how your use of the property may be restricted. Ask your lawyer if you have any questions or concerns.

Declaration – This is the document that creates the condominium corporation. It contains descriptions of all of the units in the condo. It also sets out the ownership of the common elements and the obligation of owners to pay common expenses. The declaration may restrict how the units and common elements can be used. A common restriction is to limit the use of the units to residential use.

By-Laws – These are the rules for running the corporation. They set out things like the number of directors, how many directors are required to constitute a quorum, how notice of meetings is given, and so on. It is important to be aware of how the condo corporation is structured, since you will be buying into it.

Rules – The board of directors can pass reasonable rules about the use of the common elements and the units. Owners must comply with these rules. Purchasers should be aware of any rules in existence at the time of purchase. A new rule is effective 30 days after notice is given to each owner. Within this 30-day time period, owners can demand a meeting to reconsider the rule. This requires the support of at least 15% of the owners.

3) Common Elements & Common Expenses

 The common elements of a condo are all of the parts that do not form part of the units. For example: the lobby of a high-rise building; hallways; stairways; elevators; a parking lot; etc. A common element can be designated for the exclusive use of an owner. For example, parking spots in a garage may be assigned to particular units. Backyards and balconies are often considered common elements, but are typically reserved for the exclusive use of the adjacent unit owners.

Common expenses are monthly contributions made by unit owners towards the maintenance and repair of the common elements. The costs of operating the condo development are borne by the condominium corporation. To do this, they collect money from the unit owners each month. Common expenses cover costs for the common elements such as cleaning, gardening, snow removal, management fees, and legal and accounting fees. If an owner fails to make a payment for common expenses, the corporation has an automatic lien against the owner’s unit.

4) Insurance

The corporation must insure the replacement costs of the units and common elements. Unit owners are responsible for insuring any improvements made to their units, as well as the contents of their units.

Therefore, owners do not have to carry fire insurance for the entire unit, because this will be covered by the corporation’s insurance. However, the corporation’s insurance will not cover the unit owner’s contents, or any improvements made by the owner. Most fires will damage items classified as improvements or contents such as wallpaper, rugs, paintings, furniture, etc.

5) Repairs

There is a distinction between regular maintenance and repairing damage.

Maintenance – Generally, the corporation is responsible for maintenance of the common elements and the unit owners are responsible for maintaining their own units. However, this can be altered in the declaration to make the owners responsible for maintaining common elements to which they have exclusive use, e.g. a balcony.

Repairing Damage – When damage occurs, the corporation is responsible for repairing the common elements and the units. However, they are not responsible for repairing any improvements made by the owner to the unit. Owners are responsible for damage they do to the common elements.

6) Reserve Fund

Every condo corporation must maintain a reserve fund. This ensures the corporation will have enough money to cover repair and replacement costs. Reserve fund studies are conducted every three years to determine how much money the corporation should have in the reserve fund.

Owners must contribute to the reserve fund once per year. An owner’s contribution is at least 10% of their annual common expenses, or an amount recommended by the reserve fund study (whichever is greater).

If you are buying or selling a condo and need to find a real estate lawyer to close your transaction, consider Delaney’s Law Firm. We have ten years of experience behind us, competitive rates, and will provide you with the level of service required to ensure the transaction is as stress-free as possible.

Real Estate Closings

Some common things that you should know about real estate closings :

1.   Appointment

With most real estate closings you won’t actually meet with your real estate lawyer until all of the documents are prepared and ready for execution.  This usually occurs a few days prior to the actual closing date, but can be as late as the morning of closing.  At the real estate closing appointment the lawyer will review the various documents associated with your real estate closing with you.  Most of the documents are boiler plate – meaning that they are standard with every transaction.  The execution of these documents typically takes about an hour.

2.  Day of closing

On the day of closing your real estate lawyer will send cheques/keys and executed documents over to the other real estate lawyer’s office.  When both parties have everything that they need one of the lawyers will register the deed and any associated mortgage on title through the province’s electronic land registry system.  Once the deed and mortgage are registered the lawyers can release the keys and cheques to the parties and the real estate deal is officially closed.

3.  Delays

Delays aren’t great but they do happen.  There are a lot of moving parts in a real estate transaction and they don’t always line up.  Lenders and banks won’t always get documents or instructions in on time, conditions in the agreement may not yet be fulfilled, et cetera et cetera.  If there is a delay in the closing the lawyers will typically agree to extend the terms of the deal by way of a letter.  There may be additional costs associated with the delay depending on how long it will take to get it done.

When issues arise the lawyers will always try to work around them to ensure that a deal closes as scheduled.  There are typically fairly severe consequences to one/both parties if a deal cannot close.

If you have bought/sold your home and need to find a real estate lawyer to close your transaction, consider Delaney’s Law Firm.  We have ten years of experience behind us, have competitive rates, and will provide you with the level of service required to make your move as stress free as possible.

If you would like to get started please complete the contact form below and our office will contact you.

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Ottawa Real estate closings

Real estate closings

Ottawa real estate closings are a big part of the success of Delaney’s Law Firm.  Bryan Delaney has closed thousands of real estate transactions over the years and is experienced.  Closing a real estate deal is typically very straight forward, however every once in awhile issues can crop up that make the closing more difficult.  Only experience and expertise can help smooth out these issues and ensure that the deal closes as promptly as possible.

The majority of the work done to close a real estate transaction is done by a law clerk.  The law clerk responsible for real estate at Delaney’s Law Firm is Rosana Yaworski.  Here is a short video about Rosana!

Rosana works extremely hard to ensure that your real estate closing goes smoothly.  She will keep you informed at every stage and will work with you and your lender.

Real estate lawyer’s role

The lawyer’s role in a residential real estate closing is to act as the middle man between the buyers and the sellers, their lenders, and the agent.  The lawyers take a firm agreement of purchase and sale and deliver it to closing – where the parties end up with either money or keys.

If you are looking for a lawyer to handle your Ottawa real estate closing or if you would like to learn more about the process give Rosana a call at (613) 233-7000 or complete an intake form below.

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Family Law Lawyers

Family law lawyers in Ottawa range between $150 and $600 per hour depending on their years of experience and which firm they are with.  Most family lawyers are in the $150 to $300 range.  While family lawyers are expensive most people going through a family law crises continue to use them because of the importance of the issues being contested.

The first thing a family law lawyer will do is get a handle on the facts of the case.  A certain level of disclosure (statements/documents) is required.  The amount of disclosure will depend on how complex the case is.  Typically family law issues fall under the following headings.

  1. Custody
  2. Access
  3. Child Support
  4. Spousal Support
  5. Division of Property

Custody and access are parenting issues that arise when the parents can’t agree upon the best interests of the child.  Family lawyers will use mediation or alternative dispute resolution processes to have the parties reach an agreement.  It is common for family law litigants to believe that a settlement is impossible, however most (~95%) of family law cases settle prior to going to trial.

Family law lawyers can be highly effective in custody/access disputes because they provide the parties with objective, reasonable advise.  They are often familiar with similar decisions and have a network of service providers (child psychologists, social workers, accountants) to assist the family in getting through the conflict.  Family law lawyers will typically reduce the level of conflict during a divorce and expedite a settlement.

If you need a family law lawyer please complete the intake form below to schedule a consultation.

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Legal Services – Bryan Delaney

Legal Services provided by Bryan Delaney include:

Administrative Law
Alternative Dispute Resolution
Social Program
Business Law
Alternative Dispute Resolution
Incorporations
Independent Legal Advice
Sports Law
Civil Law
Alternative Dispute Resolution
Co-op Housing
Estate Litigation
Motor Vehicle Accidents
Personal Injury
Property Damage
Residential Landlord and Tenant (Landlord)
Residential Landlord and Tenant (Tenant)
Slander / Libel
Small Claims Court
Wrongful Dismissal
Estate Law
Alternative Dispute Resolution
Elder Law
Estate Administration and Distribution
Estate Litigation
Estate Planning
Independent Legal Advice
Living Wills
Power of Attorney
Representation Agreements
Trusts
Wills
Family Law
Adoption
Alternative Dispute Resolution
Annulments
Bankruptcy and Insolvency
Child / Spousal Support
Child Custody / Access
Child Protection Proceedings
Collaborative Family Law
Committeeship (Mental Incompetency)
Division of Property / Assets
Domestic Contract
Family Court of Appeal
Independent Legal Advice
International Divorce
Paternity
Restraining Orders
Separation / Divorce
Uncontested Divorce
Variation Orders
Labour and Employment Law
Alternative Dispute Resolution
Arbitration – Interests and Rights
Employment Contracts
Employment Equity
Employment Insurance (EI)
Employment Standards
Human Rights / Discrimination
Individual Employee Representations
Management Representation
Occupational Health and Safety
Pensions
Professional Discipline Hearings
Sexual Harassment / Discrimination
Sports Law
Union Certification / Decertification
Unionized Personnel
Work Permits / Visas
Wrongful Dismissal
WSIB / WCB / WSB
Real Estate Law
Condominium Contract
Independent Legal Advice
Mortgage Agreements
Residential Real Estate
Rural Real Estate

Affidavits, Notarizations and Statutory Declarations

 

Delaney’s Law Firm provides legal services from Monday to Friday from 9 a.m. to 5 p.m.  There is almost always a lawyer in the office that is available for notarizations.  The costs of the notarizations vary, but a simple notarization is $34.99.

The firm has staff that can help you to prepare affidavits and statutory declarations.  The law clerks in the office are able to commission those documents on site.  If you need to scan, email or fax the documents there is no additional charge.

The firm’s real estate lawyer is able to witness or provide independent legal advice on real estate closings, contracts, separation agreements, or any other written instrument.

It is easier for the staff if you call ahead to schedule the appointment.  The phone number is (613) 233-7000, or email info@ottawalawyer.com.

 

Estimated Court Costs in Family law

This post is designed to inform potential or existing family law litigants about the estimated legal fees involved with contested court proceedings. These are estimates only – costs will vary from firm to firm and from lawyer to lawyer.

Intake and Pleadings

Some firms will offer a free consultation – these consults are designed to bring potential clients in the door in the hope that they will retain the firm or lawyer offering the free consultation. While the notion of *free* consults is tempting, the first question that I would be asking is why the lawyer involved has enough free time to offer free consultations. Most of the top family lawyers in Ottawa are busy all day every day.

The cost of intake will vary depending on the stage of the proceeding. If no case has been started it should only take the lawyer an hour or two to get up to speed. If you are heading for trial in a week the intake stage could take between two and twenty hours of time – $500 to $5,000 in fees.

Drafting a family law application and/or answer provides the court with the necessary facts and advises as to what issues are in dispute. Pleadings typically take between three and ten hours to draft, dependant upon the level of complexity and the number of family law issues involved. Costs for pleadings should range between $500 and $5,000.

A reasonable figure to assume for intake and pleadings for a standard case is $2,000.

Case Conference

The first court appearance in a family law case is the case conference. A case conference is typically held before a “Master.” The two acting Masters in Ottawa are Master McLeod and Master Roger. Masters are similar to judges, only with more limited powers in terms of what orders they can make. A Master will typically only make orders at a case conference with respect to having the parties disclose documents to one another. They will provide the parties with a summary opinion on the matter before the courts and give them advice on how to resolve the conflict.

Family Law case conferences were introduced as a way of having the parties meet and get an opinion at an early stage, before legal fees are incurred. The hope is to have the family law cases settle at an early stage in the litigation process to get them out of the court systems and to save the litigants money.

In order to proceed to a case conference there are some documents that need to be prepared. These include a case conference brief and accompanying affidavit of service, and a confirmation form. The brief gives the Master a top down look at the case and outlines the orders that are being requested. The confirmation lets the court know that they parties are prepared to proceed and gives an indication of how much time will be spent.

The bulk of the legal fees incurred for a case conference stem from the preparation of the case conference brief and the amount of time spent in court. Drafting the brief will usually take a couple of hours. Court time can vary depending on how long the list is on that particular day. Lawyers and their clients must wait for their turn on the court docket before making their submissions to the Master. Court dates usually take a couple of hours as well.

A reasonable estimate of costs associated with preparation for and attendance at a case conference would be $2,500.

Interim Motions

Interim motions can become necessary if something needs to be resolved at an early stage in the proceeding. Some common examples; interim spousal support, child support, possession of the matrimonial home, access rights, or sale of the matrimonial home. The cost of preparing the notice of motion, affidavit, and factum is usually between $5,000 and $10,000. The court time is usually an additional three to five hours. A reasonable estimate is about $8,000.

Mediation

Mediation isn’t mandatory in family law, but it comes strongly recommended. Any family law lawyer worth his/her salt will shuttle the parties into mediation at some point during the process in order to facilitate settlement talks. A resolution that is consented to by both parties is always superior to one handed down by a third party. A typical day of mediation with counsel will cost about $2,000. This covers preparation time (mediators will ask for briefs in advance), attendance at the mediation and the mediator’s fees.

Settlement Conference

A settlement conference is the last step before the parties proceed to trial. Parties in the family law justice system are required to attend at a settlement conference prior to having their matter placed on a trial list. The settlement conference is always held before a judge. The judge will review the matter and provide an opinion from the bench on the merits of the case. Each judge has a slightly different manner in which they conduct a settlement conference with varying degrees of success.

Settlement conferences require briefs and are similar to case conference in terms of their costs. $2,500 to $5,000 is a reasonable figure to assume, with variance given to the number of remaining issues and how in depth counsel wish to go to encourage settlement.

Trial

For each day of trial, judges and lawyers expect to see two days of preparation. Each day of trial is a ten hour work day for most counsel. That’s $2,500 plus the $5,000 in prep time. The length of the trial will largely depend on the number of witnesses involved. Each witness will typically take a half day or a full day in testimony. The number of days in trial will greatly vary depending on how much evidence must be presented to the trial judge in order to have him/her make a decision. A five day trial would cost $37,500 plus HST and disbursements – about $45,000.

These cost estimates are general and will vary greatly between firms and lawyers, types of cases, and the litigants behaviour itself. There is one thing that is clear however; using lawyers and the justice system to resolve your conflicts will guarantee a result, but the costs are palpable. You have to weigh them into your decision making process at the outset and throughout the course of the conflict resolution process.