ASK A LAWYER: When should I go to small claims court?

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A possible remedy for civil cases that aren’t required to be in another court.

Timothy N Sullivan Ottawa lawyer answers questions

The Small Claims Court jurisdiction permits cases of a total amount value of $25,000 plus interest, plus costs. (This value was raised from $10,000 in 2010 in an effort to move more cases to what is often referred to as “the people’s court”.)

Almost every kind of civil case can go to the Small Claims Court unless some specific rule or statute requires the case to go to the Superior Court.

Any contract dispute or negligence claim, trespass and most other civil matters can be brought in Small Claims.

Cases that cannot be brought in Small Claims are construction lien actions; cases involving custody of and access to children; most Family Law matters as between married spouses; and cases that require one or both parties produce an accounting. These are reserved for other courts.

If you have a civil case that does not have to be in another court, it is usually preferable to proceed through Small Claims, where lawyers are not required and the rules are written for non-lawyers.  The process is streamlined by requiring upfront disclosure of all important documents and a court appearance where further documents may be ordered.  Examinations for discovery are not permitted – but neither is a motion for summary judgment.

A key advantage is that the cost of filing in Small Claims is lower than in the Superior Court of Justice for civil matters.

In Small Claims Court, if a party is unrepresented but successful in the action, the rules permit about 15% of the amount of the claim (not the amount of the award), to be ordered in costs even if the winning party did not incur legal expenses. (There are ways to increase the costs above 15%.)  However, this rule can also be a negative if you use a lawyer, as legal fees in that case will typically be higher than what can be recovered in costs in Small Claims.

If you are uncomfortable acting on your own, paralegals who are regulated by the Law Society of Upper Canada are permitted to appear in Small Claims.  Under special circumstances a party may have someone assist in the case if they are not actually acting for that person.  This means only a lawyer or a paralegal regulated by the Law Society may provide legal advice and represent a party in the Small Claims Court.

One advantage of proceeding in the Small Claims Court is a provision about its authority in the Courts of Justice Act.  Section 25 provides that the Small Claims Court shall hear, in a summary way, the questions of law and fact before it, and are to make orders “as is considered just and agreeable to good conscience”.  While the Superior Court has a similar jurisdiction called ‘equitable’ jurisdiction, Section 25 may be considered to provide some flexibility to the judge in Small Claims Court to apply some ‘common sense’ that a strict reading of the common law may not strictly authorize.

More questions?  Don’t hesitate to contact us.

 

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional lawyer in your province.   

How to get the most out of your first meeting with a family lawyer

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Getting the most out of meeting a family lawyer

(Our office doesn’t look like this. Only Hogwarts looks like this.)

Don’t worry so much about that first meeting

For most people, engaging a lawyer is a big deal – and not something they do every day. So not only are there concerns about the issue that has brought a person to a law office in the first place, but also concerns about things like costs, procedures, and obligations.

The good news is that there’s nothing inherently intimidating about visiting a lawyer. After all, you’re there to engage them – and once you’re their client, their job is to do their very best to achieve the (legal) outcome you’re looking for. And despite what you may have seen on television, most family lawyers are normal people trying to do a good job.

And many – but not all – will treat the first meeting as a ‘consultation’. There may be a reduced fee, and there is generally no obligation if it doesn’t feel like a good fit.

Before the first meeting

Generally speaking, before meeting you for the first time, a lawyer wants to know two things.

First is whether there is a conflict of interest – whether s/he has already been engaged by someone else who is involved in your case. So the lawyer will want to know the names of the parties involved, on your side and on the other side.

The second – and often more delicate – question the lawyer will want to ask is “How will I get paid?” This isn’t because the lawyer is looking for a big fee (family lawyers generally aren’t looking for big payouts). In most cases it’s because s/he wants to give you appropriate advice, and because s/he wants to ensure clients have a good understanding of the fees involved in a particular action, whether it’s for lawyer time or court filings or expenses. You shouldn’t be shy of having a conversation about costs even before you get to that first meeting – good lawyers are upfront and transparent about their fees.

What you need to bring to the first meeting

Lawyers in Canada require identification to engage a client, so you’ll need to bring 2 pieces of ID: A drivers license, passport, etc. (your health card is not permitted as identification).

Depending on the lawyer and the circumstances of your case, you may also want to bring the following:

  • A notepad or laptop on which to take notes
  • A list of specific questions you may have for the lawyer (“What is your experience in this area?”) or about your case (“What should I do if X happens?”)
  • Any existing documentation relating to your case. This may include letters or filings from the other party or their lawyer; documentation of mediation if you have pursued that first; court documents that you may have filed previously, etc.

No two cases are the same,
but the client is always in charge.

Just as no two families are the same, no two family law cases are the same. People organize their affairs differently, have different tolerance levels for conflict, and have different priorities at different stages of the process, whether they’re involved in a separation, divorce, custody, estate or other event.

The lawyer’s role is to help the client. For us, that sometimes means we refer clients to other lawyers (in the case of a conflict) or to another professional (such as an accountant), or to recommend mediation rather than going straight from that first meeting to a big court case.

No one should feel intimidated or anxious about a first meeting with a lawyer, because the bottom line is that the client is ultimately in charge. We find ourselves using lots of complicated metaphors to describe the lawyer-client relationship, but really what we’re trying to do is ensure clients have the best, most complete information about the law related to their issue, their options for next steps, the possible consequences, costs and outcomes.

So what’s the best way to get the most out of that first meeting with a family lawyer? In our opinion, it’s by treating it like any other meeting: Give some thought to what you’re looking for, bring your questions, and then have a conversation.

 

 

 

What happens when you have a live-in partner but are still married?

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Ontario law around blended families

“I’m still married, but now I have a live-in girlfriend. We both have kids. What does this mean, legally speaking?”

Whenever a married couple separates – especially if there are young children involved – it’s best to document any custody and parenting arrangements, even if they’re only to be used on an interim basis. A memorialized (documented) separation agreement will lay out what happens with custody of and access to children, their primary residence and what should or should not be paid in support. Other issues typically dealt with in a separation agreement will be who has rights to the marital home, how finances are to be arranged in the new marital status, and, on a final basis, who gets what property.

Couples separating amicably may not think they need the formality of a separation agreement. However, schools, banks and healthcare providers may need some kind of formal documentation in changed or fluid custody situations. A formal agreement which is made when things are going well can benefit everyone involved when issues arise or when one former spouse takes on new responsibilities – or enters into a co-habitation situation with a new partner.

The trickiest issue may be the occupation of the marital home. The mortgage, property taxes, utilities and maintenance will have to be paid, regardless of who is living in the home. And the value of the home accrues to both partners in a marriage even if it is owned (on the deed) by one person. Both people in a married couple have a right to possession of the marital home until this is changed by court order or agreement.

Children need certainty and stability, and to achieve this, parents need to collaborate in parenting. A written agreement can lay out rights and responsibilities for parents. Just as fences can make for good neighbours, a good separation agreement can help a separated couple to avoid conflict and unintended consequences.

Introducing a new partner into the mix

Embarking on a common-law relationship before the previous marriage has been dissolved is fraught with potential problems, especially if there are unresolved issues from the marriage. A soon-to-be ex-spouse could take possession of the matrimonial home; support obligations, especially if they change, can disrupt financial plans; and who will be allowed to pick up the kids from school or daycare?

A cohabitation agreement with a common-law spouse can be a good way to help define rights and obligations of everyone involved. What role will the new spouse play in the disciplining of children? What contribution will a common-law spouse make to the household expenses? If the new partner is also still legally married, what impact could this have on the household?

(The truth is that, especially when children are involved, having a detailed conversation about just how the new, blended household will work is a good idea, regardless of whether one or both partners is still legally married or not. Setting realistic expectations and guidelines at the outset can prevent a lot of distress later.)

Common-law couples and married couples are not created equal in law. (So far, there are no special provisions in law to accommodate polyamory relationships, which makes it extra-important to document agreements in those cases.) Property rights apply to married couples, but not to common-law couples. Child and spousal support can apply to common-law couples, even if you don’t have biological or adopted children together.

The bottom line? When separating, it’s always a good idea to document any arrangements right from the start. When bringing a new partner into the situation prior to a final divorce, especially when one or both partners has children from a previous relationship, documentation becomes even more crucial.

 

3 Options for preparing your will

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SullivanLaw Wills and Estates

Hardly anyone enjoys the prospect of preparing a will. But without one, you not only run the risk of having your estate distributed contrary to your wishes – you may be leaving your family and friends with a legal mess to clean up after you’re gone. Don’t think of a will as something ‘morbid’; think of it as an administrative favour you can do for the people you care about most.

When it comes to wills, you have 3 choices: A holographic will, a do-it-yourself will kit, or a professionally drafted will. All three, properly executed, are legal, but it’s important to understand the advantages (and disadvantages) of each option.

HOLOGRAPHIC WILLS

A Holographic Will is a will which is written entirely in your own hand. It’s inexpensive (all you need is a piece of paper, a pen, and legible handwriting), and doesn’t require witnesses or a notary public in order to be valid. However, it does have a number of potential disadvantages: Your intentions may not be expressed as clearly to others; the organization of the will may dispose of all your property in one fell swoop and leave nothing to others as you had intended; if your will is stored at the bottom of a desk drawer, it may be difficult to locate or probate; and without witnesses, your capacity to make a will may be challenged.

DIY WILL KITS

Will kits, sold online (or in stationery stores) can be an attractive, low-cost solution. Most provide an assortment pre-written words/clauses, and all you have to do is fill in the blanks to itemize property, heirs, etc. This can be a good option for uncomplicated estates, but will kits have some caveats: It’s up to you to ensure that the will has been properly executed and appropriately witnessed; that you have included the necessary details; and that it’s stored in a place where it will be easily found when needed.It may be difficult to find the witnesses to guarantee their signatures for probate.

PROFESSIONALLY-DRAFTED WILLS

A professionally-prepared will – one drafted and executed by a lawyer – is the most expensive of the three options.  However, you may find that the cost is less than you think (many lawyers prepare wills for a set small fee rather than a large hourly retainer), while the advantages are significant.  Having a lawyer prepare your will means you’ll get legal counsel, tax assistance, and probate fee-reducing advice; your will is stored at the lawyer’s office in a fire-proof safe; and lawyers are backed by errors and omissions insurance.  This protection is particularly valuable for people whose property includes real estate (such as the family home), investments/RRSPs,  and spouses and children or grandchildren as heirs.

 

This is not intended as legal advice. Please consult a professional licensed in Ontario to provide legal advice as specific facts may affect your particular circumstances.