Ottawa real estate lawyer: What happens when a deal goes sideways?

I have been practicing for 13 years and close between 200 and 300 deals a year.  Occasionally deals won’t close.  Here are some of my perspectives on what happens next:

Buyer

Typically if the vendor (seller) in the transaction can’t close it’s because they don’t have enough money… i.e. the property is “underwater.”  Typically this means that the vendor was in arrears of their mortgage and had to pay legal and administrative fees or has a court judgement against them.  The transaction is in a shortfall and the vendor has to pay in order to close.  They have no money.

What to do:   I would ask the lender to reduce the amount of the mortgage payable and take a promissory note.  This will allow the deal to close and the lender can pursue the homeowner in a  separate action.  Typically lenders will agree to this because their remedy is to go power of sale, where they will generally get less money for the transaction than if they allow this one to go through.

The buyer should minimize their expenses and keep their costs down because the vendor has no money.  Without assets and with a lender already taking a note for the shortfall it will be difficult for the buyer to recover their losses.  The lender won’t reduce their mortgage discharge amount to indemnify the buyer, in the majority of cases.

Vendor

If the buyer can’t close the deal its usually because they can’t get a mortgage in place.  The lender may have gotten spooked and backed out, their could be allegations of fraud, etc.  The buyer can’t get their mortgage and there is no money.

What to do:   Agree to a brief extension with a per deum of $100/day to cover the additional costs of the delayed closing.  If the buyer can’t get financing within 2 weeks then re-list, depending on the advice of your agent.  The buyer will be on the hook for any shortfall resulting from their failure to close.

These are just a couple of examples to give you a sense of what happens when a real estate transaction goes south.  It is important to have a good real estate lawyer on your side in the event that things don’t work out as planned.  Although real estate transactions are fairly standard there are a lot of situations where things don’t go according to plan.  Having a good team of professionals – realtor, mortgage broker, home inspector, lawyer – they can save you literally tens of thosands of dollars and make sure your real estate experience is as pleasant and smooth as possible.

 

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.

Separation Agreements – 10 Things to know

A Separation Agreement between you and your spouse or common-law partner can save you a significant amount of time and money. A Separation Agreement can be used to settle support, property, and parenting disputes without needing to involve the court system, which can quickly become a costly process.

1) What is A Separation Agreement?

A Separation Agreement is a written agreement between two people who are separating or are separated. A Separation Agreement typically deals with matters regarding:

  1. The ownership and division of property, especially the matrimonial home.
  2. Support obligations (child support and spousal support).
  3. Parenting rights regarding decisions about the children’s lives.
  4. Custody and access rights to the children.
  5. Any other matter in the settlement of their affairs.

2) Full Financial Disclosure

Before signing a Separation Agreement each side should be provided with the other’s full financial disclosure. Full financial disclosure protects each person by ensuring they have access to all the financial information needed to make an informed decision. Without full financial disclosure the Court may not enforce a Separation Agreement.

Full financial disclosure includes formally providing the other person with supporting documents for:

  1. Bank account statements
  2. RRSP amounts
  3. Information on a private owned business.
  4. Debts and liabilities.
  5. Formal pension valuation.
  6. Property owned and value.
  7. Any other relevant financial information.

Each side should have a lawyer review the financial disclosure. Full financial disclosure is essential to ensure that a separation agreement will be enforced.

3) Spousal Support

In Ontario, when spouses separate the spouse with more income or assets may need to pay spousal support to the other spouse.

A Separation Agreement should detail how much spousal support will be paid from one person to the other and for how long. Things that need to be taken into consideration are how much support the other person requires to have their needs met and how much the other spouse can afford to pay.

If spousal support is being waived or is a relatively small amount, then it is highly recommended to have the Separation Agreement prepared by a lawyer to ensure that this waiver remains enforceable. The Courts sometimes view ‘one-sided’ Separation Agreements that waive spousal support with suspicion.

4) Child Support

Within a Separation Agreement it is recommended that child support payments be decided in accordance with the Child Support Guidelines’ table amount. Parents will also need to decide how to pay for any of the children’s extraordinary expenses. Examples of extraordinary expenses would be: team sports, daycare, and post-secondary education. A general rule of thumb is that extraordinary expenses will be paid in proportion to each spouse’s income.

If child support payments are being varied from the guideline amount in your Separation Agreement you should review the agreement with a lawyer to ensure the agreement is enforceable.

5) Parenting Arrangements

A Separation Agreement should include a written outline of how spouses will co-parent the children moving forward. The parenting arrangements should cover topics such as:

  1. How will decisions impacting the children be made?
  2. How will information about the children be communicated to each parent?
  3. Where will the children live?
  4. How often, when, and where will the children visit with the other parent?
  5. Who else will the children be able to visit?
  6. How will holidays be celebrated?
  7. Any other parenting issues that need to be outlined.

6) Matrimonial Home

The Separation Agreement should outline whether the house will be sold or who will take ownership of it or continue to live in it. You should have a formal Separation Agreement before attempting to change any aspect of the ownership of the home.

7) Dispute Resolution Clause

A properly drafted Separation Agreement will include a dispute resolution clause. This clause will outline how future disagreements will be addressed. A dispute resolution clause may be that the parties must attend mediation or arbitration. The value of the dispute resolution clause is that it can help save each side time and money. Without the dispute clause the spouses may resort to costly litigation to solve each dispute.

8) Independent Legal Advice

It is in both side’s best interests to receive independent legal advice (ILA). Ensuring your spouse gets ILA helps prevent them from being able to claim that they did not understand the nature or consequences of the Separation Agreement, which can cause the agreement to be unenforceable.

Spouses should each have their own lawyer. A lawyer cannot give legal advice to both spouses. Not receiving ILA can be a costly mistake that leads to the Separation Agreement being set aside and a resulting expensive court process.

9) Property Division

The Separation Agreement should outline how the net family property will be divided, whether there will be an equalization payment and, whom it will be paid to. The agreement should be clear in specifying if certain benefits are given in exchange for others. For example if one spouse is waiving spousal support in exchange for the other taking over all of the family debts, that should be clearly written.

10) Delaney’s Law Firm Offers Free 30-Minute Consults!

Call us at 613-233-7000 to book your free consultation. Receiving legal advice can help ensure your Separation Agreement will be enforced and save you money in the long run.

 

Re: Sanfilippo buys Judiciary appointment for $1,800

Today’s rant, for lack of a better word, is based upon this article that I perused earlier this morning:

https://www.thestar.com/news/canada/2017/08/01/this-lawyer-gave-the-liberals-more-than-1800-then-he-became-a-judge.html

This article is ridiculous.  It’s a smear.  I’m sorry but I just don’t believe it.  It is, in all likelihood, FAKE NEWS.

Now I have no doubt that Andrew Sanfilippo gave $1,878.87 to the Liberal Party.  And I have no doubt that Minister Jody Wilson-Raybould has appointed Sanfilippo to the bench.  Those are the facts.  My issue is with the innuendo that the Star inserts into their article to suggest to the reader that the donation and the appointment are tied to one another.

This suggestion, completely unfounded, diminishes the reputation of our provincial judiciary.  This is not a good thing.  People that appear before judges are typically at an important juncture in their lives.  Their family unit has broken down.  Their children have been removed from their care.  They are losing their liberty.  They have been disabled and need disputed insurance coverage to support themselves.  It’s important that when these people appear in front of our judges that they have confidence in knowing that there is an intelligent, hard working, and reputable person that is going to make the decision that will have such a great impact on their lives.  What the Toronto Star has done here is created anxiety in those who will appear before Justice Sanfilippo.  The Star, by their very allegation, has eroded the public confidence in the judiciary.  If they don’t like a decision – then it becomes all too easy to believe that the judge bought his position.  Why respect a decision-maker of someone who bought their position for $1800?  It breaks down the rule of law and erodes the public confidence in the administration of law.

I can tell you that I have litigated against O’Donnell Robertson and Sanfilippo.  They are tough.  I would describe them as a hardened Toronto insurance defence firm.   When you do insurance defence you have insurance companies as your client.  You get a steady stream of files in exchange for working at a reduced hourly rate.  In order to make up for the reduced rate the lawyers are typically required to work longer hours in order to generate a solid revenue stream.  I would expect that Mr. Sanfillippo billed about 1800 hours a year.  That 150 per month.  To bill 150 hours per month you have to work 50-60 hours per week.  Mr. Sanfilippo took time away from his family, from his friends and his hobbies and invested it in his career.  For 32 years.  That’s probably about how old the reporter was on this story. Just so we’re clear here, Mr. Sanfilippo was working his ass off in an articling position while this reporter was still in diapers.  And that is why he got appointed to the bench.  It had nothing to do with a paltry $1800.

The star also failed to mention Mr. Sanfilippo’s three post-graduate degrees, the work that he did as a trustee for Fanconi Canada (to find a cure for Falcon anemia) or the fact that his peers rated him as one of the top 40 insurance lawyers in Canada.  There is no story in “Hard working and well educated lawyer gets appointed to the bench.” They took the $1800 donation and judicial appointment and tried to sell some newspapers.  It’s a farce and a joke and I’m calling them out.  Show me a smoking gun.  Show me an email, or a witness statement, really any shred of evidence that links the $1800 to his appointment.  Sanfilippo has built his reputation on honesty, integrity, hard work and toughness.  I will not stand by and let the Star disparage that reputation for a few measly clicks.

I have no relationship with this firm, have received nothing for writing this blog, and will never appear in front of Justice Sanfilippo.  My only goal here is to raise awareness, protect both the administration of justice and the reputation of a fellow barrister who has done absolutely nothing wrong here.

Congratulations on your well-deserved appointment Justice Sanfilippo, thank-you for your years of service to your community and like Mother Theresa always says – “Don’t let the bastards get to you.”

The Case of Omar Khadr

Why did the Canadian government just settle Khadr’s file for $10 million?   Here are some of the laws that the Harper government broke when handling Khadr’s file:

(ii)Convention on the Rights of the Child (CRC)

Canada has a duty under the CRC to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” (Article 19(1)). A child is a person under the age of 18 (Article 1).

In addition, Canada must ensure that “[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”, that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily” and that the “arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time” (Article 37(a) and (b)).

Canada must also ensure that “every child deprived of liberty shall be separated from adults” and “have the right to maintain contact with his or her family through correspondence and visits”, except in exceptional circumstances (Article 37(c)). Further, every child in custody “shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action” (Article 37(d)).

Canada also has a duty to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” (Article 39).

Finally, Canada has recognized “the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth” (Article 40(1)).

The CRC imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.

Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)

Legal Rights

  1. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
  2. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
  3. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

  1. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The Supreme Court of Canada applied these laws in their analysis of the government’s conduct and cam to the following conclusion in Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3 (CanLII):

“This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive  him of his  right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. “

 

This finding put the government on the hook for their own legal fees, Khadr’s legal fees, and the damages that flow from their breach.  A review of the case law on similar findings shows that the $10 million in damages is in line with what other cases came up with.  It’s not about Khadr – it’s about making sure that the Canadian government thinks twice before allowing Canadians abroad, particularly children, to be tortured in inhumane conditions.  Sending CSIS agents to participate in that torture was Harper’s decision.  Canadians elected Harper as Prime Minister, and now we have to accept responsibility for his actions, whether we like it or not.   Trudeau did that, because he had no other option.  There is no appeal from the Supreme Court of Canada.

 

Real estate lawyer’s common advice on Agreements of Purchase and Sale

Real estate lawyer review

As a real estate lawyer I am routinely asked to review agreements of purchase and sale (“APS”) .  This is now becoming more and more standard as realtors insert solicitor review clauses in their APS in order to protect themselves and their clients.  I though I would share some common advise that I give out on these reviews.

Deposit

No less than $5,000, I recommend $10,000.  If someone is going to buy a property they will definitely have $5k – $10k on hand and there is no reason why they should put less down.  Gives the vendor additional protection in the event that the deal goes sideways.

Dates

Give everyone time to get things done.  Title search and closing should be given at least 4 weeks.  Can it be done in less?  Yes.  But the reality is that if you rush the office workers that have to put the deal together you increase the risk of a mistake being made.  Mistakes cost time and money.  Lenders are typically large institutions that are not agile and responsive and you have to give everyone the time and space they need to get everything done.

Conditions

Pretty much every deal should have a condition for financing and home inspection, unless some special circumstances exist.  I routinely advise vendors against conditions for warranties and SPIS.  These can lead to future litigation if the dishwasher breaks three days after closing, for example.  Leave them out and rely on the doctrine of caveat emptor – buyer beware.  It’s cleaner and can avoid planting the seed for a future dispute.  If I am reviewing for a buyer I of course won’t say anything – it’s to their benefit to have those conditions included.

If you or your realtor have questions on your agreements of purchase and sale feel free to contact our office for assistance at (613) 233-7000 or send an email to info@delaneys.ca.  You can also visit https://ottawalawyer.com for more information on our services.

 

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.

 

When in doubt, dial out

Back in 2010 mobile apps were the latest and greatest thing.  Delaney’s Law Firm was one of the first law firms in Ontario to engage mobile device users and our law firm app can be found here:

https://itunes.apple.com/us/app/delaneys-law-firm/id385748727?mt=8

Check it out – it has a child support calculator, land transfer tax calculator, and net present value calculator.  All useful tools for lawyers and clients dealing with family law, real estate law, or personal injury law – the firm’s three main practice areas.

If you find yourself in a jam hit the app’s big red panic button and someone at the firm will field the call and offer a free 30 minute consultation.   You can also phone (613) 233-7000 or email info@delaneys.ca to get started.

Holiday access disputes

Red flag: access dispute coming

You can easily spot a high-conflict family law file through a Christmas or holiday access disputes.  A typical situation: one parent has the opportunity to go away (i.e. the grandparents have paid for a family cruise and want the kids to go) but it’s the other parent’s time with the Children. This time was hard fought in an acrimonious custody/access dispute. The answer, as everyone will guess, is no.

These are recurring themes. Mother thinks father is being totally unreasonable and trying to get back at her. Father is untrusting because mother has controlled and limited his contact with his own children. Both feel completely justified in taking the positions they are taking, and the conflict then escalates into high emotion confrontation where they both attempt to move the other party through emotional distress.

I need answers

What is the solution?

Well there isn’t really an easy fix here. It takes work and an ongoing commitment. Multiple mediation sessions. Ongoing counselling. Online software purchases. There are a multitude of things that separated couples try that are sometimes successful but often end in disheartening failure.

Unfortunately the court system is no different. The motions court is overrun at the holidays with motions on access. Each motion runs between $3,000 and $5,000, and if you are too late (ie. you haven’t booked by November) you likely won’t even get heard until January or February. The wheels of justice turn slowly. If you have an issue with that discuss the amount of funding that the Attorney General receives with your local MP.

My recommendation as a family law lawyer mirrors that of any judge of the Superior court. See the matter through the eyes of the child. Understand their perspective and their wants and needs. Make an effort to understand more deeply the other parents foundation and address it through clear communication and multiple offers. Put the work in stay calm and patient. Be the role model and teacher that your child is relying on you to be. These issues are not insurmountable by any stretch, they simply require time and effort to resolve.

Those words are easy advise to give, and sometimes hard to follow. I understand that. And if you fall, then pick yourself up and get right back at it. A good resource that I have recommended to clients is Dr. John Gottman’s research. Check it out on Amazon by clicking here.

We are here to help.

If you are unable to resolve your family law issues then consider booking a one-hour consultation with one of our family law lawyers.  Sometimes a second set of eyes and an objective opinion can go a long way in helping to improve things.  Call (613) 233-7000 or email info@delaneys.ca today.

Access disputes – Tips from an experienced family lawyer

Access disputes

Access disputes in family law are very common and sometimes require the assistance of a family lawer to resolve.  This article will help parents who have recently separated decided what time-sharing arrangement will work best for their family.

Be flexible

Children’s access arrangements will often change over time.  As their school/extra-curricular activities change so will their access schedule.  Their age will also play a large role in how much time they spend with each parent.  Because these external factors play such a large role it is important that separated parents be flexible and understand that any arrangement that is reached will most likely be temporary.  Being flexible with access arrangements will reduce the amount of family conflict and improve your children’s long term outcomes.

Build a consensus

Effective access schedules are ones where both parties have voluntarily agreed that the schedule is the best one available for the children.  Sometimes the best way to accomplish this is to try both parent’s schedules and see which one works better.  If one parent wants week on week off and the other wants every second weekend and one night a week, you could try one during the school year and one during the summer.  It’s important for both parents to try the other’s “plan,” because you need both parents to buy-in in order to successfully implement the agreed upon access schedule.

Use the Arizona Access Guidelines  as a starting point

In Arizona they have a set template for child access based on experts general recommendations.  The guidelines can be found here.   If you are having difficulty deciding which access regime is best – start with what the guidelines recommend and build from there.  It can be helpful to have an objective third party suggest the starting routine where the trust between the two parents has been greatly diminished.

Stay Organized

Parents trying to figure out a decent access schedule should start with a two week map:

S  M  T  W  T  F  S

S  M  T  W  T  F  S

These diagrams help you to figure out who is where, and when.   There are also now web applications that are designed to help separated families co-ordinate between two households.  Try Our Family Wizard.  It is important for both parents to stay organized and understand their own responsibilities in order to avoid conflict.

Understand Your Alternative

If parents are unable to agree on an access schedule a court application may be required.  Typically the cost associated with a court application, case conference and motion would range in the $8,000 to $15,000 range.  The parents failure to build a consensus with respect to access means that a judge, who is a stranger to the family, will determine what is best for their children.  Judge’s will often ask for and rely on expert’s reports ($6,000 – over and above the costs noted above) in order to make their decision.  Judge’s placed in that situation may also give neither parent what they want;  in that scenario $30,000 to $40,000 of family money just went out the door and both parties are still at square 1 in terms of figuring out how to work together.  Certainly there are better uses for those funds.

Conclusion

A good family lawyer can be worth their weight in gold early on in a separation in terms of resolving conflict and helping a family adjust to their new reality.  More importantly, however, is the parent’s willingness to be flexible and to respect the other side’s perspective on what is best for the children.  By trying out a few different regimes parents can find what works best for the family as a whole and save thousands on expensive motions and experts.  If you are having a hard time finding the sweet spot in your family’s access dynamic you may want to book a one hour consultation with one of our experienced family lawyers.