For the past twenty six years I have been practicing law.  It definitely does not feel as though it has been that long, and I have enjoyed every minute of it.

To me, it has always been about helping people.  However as I get set in my ways I notice how habits develop without me even knowing  it.  I was not aware of some of these habits until I was on the other side of the desk, a client with my own lawyer!

What I have taken from this situation is helpful to both clients and counsel alike.

As counsel I have always tried to put myself “in my client’s shoes”.

What I mean by this is that I approach each client as if I were on the other side of the desk. What do I expect from my counsel?  Of course, I use the word and noun “counsel” on purpose.  The first thing I will expect is counsel from my lawyer.  This means counsel within the retainer, not counselling in the psychological sense.  Your lawyer is not a qualified therapist and, even if he or she is, their time is are a very expensive therapeutic option.  As a result, keep your communication in a factual manner.

The second thing is that I always try to provide personal replies and answers to legal issues and questions, rather than delegating this to a clerk or a junior lawyer.  Answers ought to be dealt with as soon as possible.  I would expect as a client to receive emergency answers immediately – and if the issue is an emergency to me but not, in an objective manner, to my lawyer, for someone to let me know this and be comforted that the answer will be coming.

Thirdly, I  expect my counsel to listen to my needs.  Do I need every dime I can get out of the litigation, or is there a range of results?  What is the range, and most importantly what is the cost /benefit analysis at each stage?  If I have three children and my spouse argues that his personal business only earns $40,000 per year, and he lives otherwise, this may require more resources and time than someone who is arguing the difference between an income of $100,000 and $110,000. What are the costs in continuing?  Is the cost of continuing likely going to outweigh the result?  What are the emotional and psychological costs?  Can I afford the time to deal with a minor issue – is it worth that last court appearance if I am in a new job that I love – and the attendance might prejudice it?  I always look at the person across from me and wonder if I were in his or her position, what could I afford?  How far would I go?  Do I need this “win” (and by the way sometimes one needs a “win” to stop further litigation harassment).

Now that I am on the other side of the desk, I have also learned a few other things.  I cannot control what is happening and I leave that to the expertise of the lawyer I have researched and chosen.  But, I realize that the minor issues that even I sometimes forget about when I am counsel can be very frustrating and even undermine an efficient and reasonable settlement.  For example, facts not relevant to the action are sometimes incorrect in briefs.  While this usually makes no difference in the final result, it can be very frustrating to a client.  The client wonders if the lawyer cannot get a name of a child or a birthdate or other fact straight, is he or she really listening to me?  Do they really care, or am I just a file number?  This is important to a client.

Keep the client apprised of what is going on.  A very intelligent and caring clerk told me to always send everything to the client – keep them apprised about what is happening.  This gives your client confidence and with confidence, the ability to accept recommendations in an educated and objective manner.  Without this information and knowledge a client may be hesitant to accept recommendations. Keeping them up to date as the matter proceeds allows for fair and intuitive analysis and makes the job so much easier for everyone.

In the end a client ought to expect a caring devoted counsel, not a friend.  One should know all the pros and cons to the matter and the eventual results early on.  Is there a game plan? And are you part of the development of the plan?  Do you have a contact if the lawyer is not available?  Ask yourself before any communication, what do you need to learn? What information do you need?  If your lawyer asks you to do something (disclosure, productions, medical reports) they are doing it for a reason.  If there is trust and communication, this will expedite the process and provide a team approach.  Think of the lawyer and his or her staff and associates as your team and like in any good sports team, set up a game plan and try to stick to it.

In the movies there always seems to be one spouse trying to get the other to sign the “divorce papers” so that they can get remarried. Think “Sweet Alabama”. In Canada, our procedures are somewhat different.

There are two streams for divorces. It is either an Uncontested Divorce in which case all of the outstanding issues (property, custody, access, support) have been resolved (by way of Separation Agreement, Minutes of Settlement or Court Order) and neither party opposes the divorce, or a Contested Divorce in which case you have yet to resolve those issues and one party does not agree to proceeding with the divorce. In a contested matter, there is the opportunity to sever the divorce from the corollary relief (property, custody, access, support), if both parties agree to it.

Grounds

In order to obtain a divorce in Canada, there must be a marriage breakdown. Marriage breakdown may be: Separation – living apart for one year; Mental or Physical Cruelty; or Adultery.

Can I do it myself?

In the case of a contested divorce you should seek legal advice as to your rights and what the steps are in your specific case. Even in an uncontested divorce it is best to obtain legal advice with respect to your rights and whether in fact  you have dealt with all the outstanding issues or if you first need to obtain a Separation Agreement dealing with all of your rights. Once that step has been taken and both parties agree, you can proceed with the uncontested divorce.

You can prepare the paperwork yourself, however, the Application or the Affidavit can be returned by the court staff where you file it if certain information is missing. This can cause a delay in the process.  If you do not know where your spouse resides, there may be other steps to take in order to complete service. If an amount other than table amount is being paid for child support there will be further explanations required in your materials. These are factors to be taken into consideration when determining if you wish to do it on your own.

Steps in an Uncontested Divorce

The Application must be completed and issued by the Court. Once issued, you must arrange for service (unless it was a Joint Application) either by mail with an Acknowledgment of Receipt card signed by your spouse, or by personal service. The spouse then has 30 days in which to respond. If there is no response, you can proceed to file your documents with the Court to request an uncontested divorce. This will include your Affidavit and draft Divorce Order. The Judge will review the documents and determine whether the divorce should be granted. The Court will then issue the Divorce Order and mail it to the parties or provide to counsel of record.  31 days after the Divorce Order has been granted, you may attend at the Court Office and obtain a Certificate of Divorce. At each stage there are filing fees to be paid to the Court.

Crossposted at Matrimonial Matters blog: I want a Divorce!

Thursday April 19, 2012

Thinking about selling your business? Perhaps you have entered into informal discussions with a possible buyer. The buyer is looking for some more detailed information about your business in order to decide whether he wants to make you an Offer. Maybe he wants some past financial records or other confidential information in order to determine price. How do you give him this information, before the deal is even made? Using a Nondisclosure & Confidentiality Agreement can be helpful. It will outline the terms upon which you agree to provide certain confidential information, and it will set out how it can be used, to whom it can be disclosed and when it has to be returned. This can be a separate stand-alone agreement, or similar wording can be incorporated into a letter of intent, where the parties at least agree that it is their intention to buy and sell and they will be entering into negotiations in this regard. The agreement, no matter the form, will help to clarify the rights and obligations of the parties, and may assist with narrowing down some of the issues to be resolved before a definitive Agreement of Purchase and Sale can be drawn up. Being careful with your business secrets just makes good business sense.

Crossposted at Getting Business Done Blog

For those of us who are not natural writers, the category in which I belong, it is not the easiest thing to write something interesting on a regular basis (no debates on the “interesting” self categorization please).  But with the merger we now have many more that can contribute to this blog.  Not only will you see contributions from yours truly, but others (see photo above), including Eric Finn, Scott Fairley, Eric Gionet, Jason Botelho, Samantha Hicks and William Brennan.

Collectively we hope to give you tales from “the trenches” which will both inform and at times entertain.  It is our experience that legal issues do not truly take their form unless tested by the reality of every day experience.  You can expect to hear about issues involving land, contract, employment, debt collection and everything else we run across.

We expect to be rolling out the blogs starting May 1.

We hope you enjoy this effort and look forward to hearing from you!

Regards, John Barzo

cross-posted to In the Trenches:  COMING SOON! MORE WRITERS! MORE ARTICLES! MORE FUN!

We are sometimes asked by clients whether or not they should seek a divorce or instead can they seek an annulment of the marriage, essentially declaring that the marriage is null and void, or the other spouse may be threatening to have the marriage annulled.

Most often an annulment is sought for religious purposes; however, the annulment obtained through the Church is not recognized by the government or the Courts.  In the Application for Divorce, Form 8A, you can seek under “other claims” an annulment.  You must be able to prove that there is a valid reason why the marriage should be annulled.  Such reasons include that one party was already married unknown to the other party; there was not capacity to be married, or the marriage was not consummated due to certain factors.

Below are two articles addressing the issues of annulment, the first is by J. N. Mukongolo & Associates and the second by Ottawa Divorce

http://www.ontariodivorces.com/annulment.html

http://www.ottawadivorce.com/annulment.htm

You should seek legal advice in order to determine whether you have grounds for an annulment through the Court process or whether a divorce based on marriage breakdown is more appropriate for you.

A relationship breakdown affects people in different ways. Some people know that they have grown apart, accept that fact and are able to move on with their lives rather quickly. These are the people who can come to a quick and rather painless resolution of their parenting and financial issues.  If they use lawyers, their legal fees are low and they always reach an agreement without very much fuss. Other people, (and I think these are the majority), are torn apart by the failure of their relationship.  Depression, anger, frustration, all very strong emotions, control their behavior making it impossible for them to think rationally. It takes these people much longer to go through the process. For varying periods of time, they can’t let go of the feelings of hurt and they can’ t move on – sometimes for many years.  However, with appropriate counselling and with an appropriate method of dispute resolution, such as mediation, or collaborative law, these people can find a peaceful resolution and they can eventually move on with their lives. Sometimes they need a trial as well to resolve legal issues which cannot be resolved by the other dispute resolution methods. Such a trial is what the justice system is  all about – facts and evidence are presented in a civil manner, with appropriate decorum, an experienced and knowledgeable judge makes the appropriate decision.  Sometimes an appeal is taken, but eventually, the litigants accept the result and move on. Often they become stronger individuals as  a result of their experience in resolving the conflict in such a humane and civil manner.

Then there are the people who have what psychologists and psychiatrists characterize as “ a personality disorder”.  Bill Eddy, a noted mediator and lawyer who has written extensively about high conflict families, notes in his book¹ that “personalities, not issues”, drive the conflict for the High Conflict Person whom he terms the “HCP”. Professionals involved in the legal justice system from lawyers to judges to mental health care professionals have little influence or experience in controlling this type of conflict. The HCP always go to court. They see this as the only way to resolve their conflict. They want to inflict as much damage on their partner as they can and they view the court system as a means to accomplishing this. They very often don’t even comprehend that it is there personality disorder which is driving the conflict and that they need mental health care more than they need the justice system.

It takes training and a high level of expertise to enable people with personality disorders to finally resolve conflict.  Professionals who try to assist such people often run out of patience. They often don’t get paid and their HCP clients frequently report them to their professional governing body because they never can live up to this type of  client’s expectation. Needless to say, many professionals have simply ‘dropped out’ of handling such cases and have dropped out of handling family law cases altogether. In Ontario, for example, many psychologists and other mental health care professionals who perform the very valuable service of providing guidance to Judges handling parenting disputes are retiring from this aspect of their profession. This is a great loss to our system.  The HCP often ends up representing him or herself in the family justice system and is then entirely out of  control. As we live in a society where everyone is entitled to his or her day in court, the system unfortunately has to accommodate this kind of individual.

High conflict personalities cost the justice system a great deal of money. They tie up the court system with their ongoing feud. Every order which  a judge makes is either disobeyed or challenged in some way. They change lawyers often, causing further delay. If things don’t go their way, the conflict only seems to increase, not dissipate.  Their “day in court” never ends – it just moves around the system from judge to judge and courtroom to courtroom.  Other legitimate users of the justice system have to wait while the HCP consumes so many resources which would otherwise be available for them.

If the HCP causes so many problems in the justice system, why then are they tolerated? More importantly, how can the system adjust to handle them? Fortunately, there are numerous organizations now researching this issue, providing wonderful insight and guidance.

The High Conflict Institute LLC was founded by Bill Eddy and Megan Hunter in 2008. In Ontario, the High Conflict Forum takes place annually. It is organized by Jewish Family & Child and each year the forum brings attention to this topic by presenting a one or two day conference on this subject. Leading speakers include Professor Nicholas Bala, a Queen’s University Law Professor who has done extensive research on this topic. Bill Eddy has also presented at this forum. There are of course many others who have taken up the challenge, studying the issue, trying to understand its roots and most importantly, trying to come up with answers.²

All that is needed now is for the various government bodies to take a leadership role. Someone needs to take all this vast amount of research, create some recommendations and bring the resources to bear on an appropriate resolution.

Perhaps, in time, people who need the services of the mental health profession will obtain that service instead of the services of the adversarial justice system which only provides a forum for their ongoing disastrous conflict. Maybe then, as well, the people who truly need the justice system to resolve legal disputes will have greater access to those services too.

¹ High Conflict People in legal disputes HCI Press, Nov, 2009.

² Web site of the High Conflict Institute is http://www.highconflictinstitute.com/  and the web site for the High Conflict Forum is http://www.jfandcs.com/client/jfcs/jfcs_2011_lp4w_lnd_webstation.nsf/page/High+Conflict+Forum!opendocument

I was recently contacted by one of the profs in this program at Georgian.  Each student in the program is required to produce a business plan to take a domestic product or service to an international market, other than the US.  In the past, students have worked with local  businesses who have given them access to information and time with staff to create real life scenarios.  A couple of students have gone on to win a national award for their work and some students have been hired by their clients as interns to enhance or implement elements of the business plan afterwards.The ideal business is one that has a product currently sold in Canada.  The size of the business does not matter as award winners have been a very small business and a medium sized business.For small businesses with unique products this is an excellent opportunity to look at the possibility of exporting the product to international markets and gaining some knowledge on the process. With the added bonus of supporting local education at Georgian!  A win win situation!