A "spousal relationship" includes both a married and an unmarried "common-law" relationship. The applicable legislation include the Divorce Act and the Family Law Act.
The issues to resolve between parents or other interested family members typically include:
- Parenting Arrangements: other terms include "custody"; "parenting time"; "parenting responsibilities"; and "parenting plans";
- Division of Property or Debt: this issue may include an assessment of "excluded" property claims; claims for "unequal" division of family property or family debt; issues of valuation may arise;
- Spousal Support (Alimony): this issue includes an assessment of interim or permanent support; or lump-sum awards; considering the duration and quantum (amount) of support;
- Child Support: this issue includes assessment of "basic" or section 7 "special or extraordinary expenses"; reviewing the Federal Child Support Guidelines; determining the amount of support; "imputing" income to a parent who appears to be intentionally underemployed or unemployed; assessing the appropriate level of support in "shared" or "split" custody scenarios; determining the amount of child support for children over the age of majority or are unable to withdraw from their parents' charge;
- Protection from Family Violence (Protection or Restraining Orders): these orders are serious and are enforceable by criminal law mechanisms;
- Conduct Orders: these orders essentially prescribe the "rules" that the parties must abide by when interacting with each other;
- Financial Restraining Order / Injunction: this issue relates to the interim protection of the assets such as preventing the transfer of assets to unrelated parties designed to defeat a spouse's claim;
- Mobility / Relocation: this issue relates to when one parent wishes to relocate to another location which will affect the parents' ability to maintain a relationship with the child(ren).
Sometimes the government becomes involved in a family law case in which case the following issues may need to be resolved:
- Child Protection cases which involve liaising with the Ministry of Children and Family Development: if there is a child protection concern then the state can intervene and seek a range of remedies escalating in severity such as a "safety plan", "supervision order", "protective intervention order", "temporary custody order", "permanent transfer of custody", "continuing custody order", or adoption;
- Criminal law: if a parent is charged with a crime such as assault arising from the separation, then the laying of the charge may impact the parenting arrangements/custody at least on an interim basis as the "MCFD" are usually notified, as such it is critical that this issue be dealt with carefully.
Family law cases may also engage other areas of law including:
- corporate law: as the corporation itself may be subject to a family law claim or the assets/property held by the corporation may be subject to a family law claim; or if one spouse essentially controls a corporation then that may also effect the determination of that spouse's income for support purposes;
- trust law: as assets in dispute may be affected by a trust;
- wills and estates: as the assets in a divorce may be affected by a will; or the family law case may intersect with a wills and estates action if one spouse deceases prior to the conclusion of the family law case;
- tax issues: there may be tax liabilities that need to be resolved between the spouses or the mechanics of the settlement may attract differential tax treatment;
- the law of contracts: family law agreements or orders may be challenged in which case the exercise of contractual interpretation is engaged.
Important decisions in a family law case may occur quickly which lasting or permanent consequences.
If you've been charged with a crime, it is often vital to have a lawyer assist you to ensure that you receive fair treatment by the police and the courts. The Criminal Code, the Canadian Charter of Rights and Freedoms, the Controlled Drugs and Substances Act, and the rules of evidence generally primarily govern this area.
Types of Charges
Criminal charges include the following groupings:
- Violent offences and Assault: this grouping include assault, assault causing bodily harm, and uttering threats. The range of sentences vary greatly and largely hinge on the factual findings proven at a trial or agreed to prior to sentencing.
- Property crimes: this grouping includes break and enters which can attract severe sentences especially if breaking into a private dwelling.
- Fraud and theft: this grouping includes frauds of various degrees of sophistication.
- Sexual offences: this grouping of offences largely centre upon whether consent was given;
- Driving charges: this grouping include driving while intoxicated or without prior licensing. This area of law intersects with administrative law.
- Drug Charges: this grouping includes trafficking, possession for the purpose of trafficking, and production and distribution of drugs. This area significantly attracts Charter litigation such as the law of unlawful search and seizure; search warrants; and strip searches.
- Breaches or Failure to Appear: this grouping of offences deal with allegations that a person has breached their release conditions; failed to appear at court; or breached a term of probation. These charges unfortunately can have the practical effect of keeping a person "stuck" in the court system.
The first step in a criminal case is to deal with Bail or the release of the person accused of a crime. Dealing with this adeptly is critical. All too often persons who are denied bail and are detained in jail plead guilty to a charge despite having a valid defence. The terms in the analysis include the "primary", "secondary", and "tertiary" grounds.
In many cases, the most important stage of a criminal case is about the sentence the person will receive. The sentencing hearing can follow after a guilty finding after a trial, or by negotiating a guilty plea arrangement with the crown prosecutor.
Types of sentences include fine, probation, suspended sentence, conditional sentence (house arrest), restitution, or jail.
It is a principle of sentencing that an offender ought to receive a reduction in their sentence for pleading guilty and avoiding a trial. However, it its contrary to the law to permit an innocent person to plead guilty despite how "good" that a deal is being offered by the crown.
Defence counsel play a critical role in negotiating a fit and appropriate sentence.
The Charter is an important vein of litigation in criminal cases. The Charter sets out the minimum standards of humane treatment that all persons of this country are to be given by state officials. Or viewed in another way, the state must use the correct procedural approach to gathering evidence and prosecuting its cases.
Generally, if a Charter argument succeeds, then the evidence connected to the Charter breach is excluded from the trial which in many cases can result in an acquittal.
Charter breaches frequently may involve violations relating to:
- unlawful search and seizure;
- unreasonable delay in affording the accused right to legal counsel;
- improper advisement of the reasons for arrest;
- unlawful arrest or detainment, including the manner of arrest;
- strip and cavity searches;
- improper search warrants and reliance on informants;
- the manner and use of an accused person's statements or confessions.
Alternative Dispute Resolution
"The supreme art of war is to subdue the enemy without fighting" - Sun Tzu's Art of War
"There is no instance of a country having benefited from prolonged warfare" - Sun Tzu's Art of War
*The above quotes do not necessarily apply to criminal cases where the proper determination of guilt or innocence is paramount.
Apart from criminal cases, there are many reasons why individuals wish to avoid formal litigation. Litigation is costly, time-consuming, usually public, and stressful.
Many disputes benefit from dispute resolution processes outside of the courtroom. This enables the parties to maintain control over the time, expense, formality, and the degree of privacy given to a dispute.
For example, a family law case may take years to formally reach a conclusion in court. In contrast, after the exchange of financial information, a family law case may resolve in the span of weeks or months using mediation or other out-of-court dispute resolution forums.
In addition, and referencing economic theory - formal litigation tends to focus the analysis on" dividing the pie" instead of focusing on "expanding the pie" or "slicing the pie differently" which maybe more readily achieved in mediation.
Formal litigation also tends to be a poor procedure for addressing the parties' emotional or human interests.
Importantly, throughout a formal lawsuit, there are often incredible (and often underutilized) opportunities for negotiation, whether it be in a family, civil, or criminal case. In the course of a court case, the parties (and their counsel) can sometimes lose track of the ultimate aim which usually ought to be solving the problem, and instead may focus on "winning" or "losing" the case. This is not a fault of the parties, rather it appears to be a consequence of the formal litigation system.
If you find yourself "stuck" in a legal dispute, you will ideally secure legal counsel who is adept at both formal litigation and negotiation so as to ensure that all opportunities for a resolution are identified and explored while minimizing your risk, the time spent, and the expense.