Peel BriefsThe Newsletter of the Peel Law Association

Dead Line for Next IssueFebruary 29, 2016

Winter Issue2015

Number 3

PEEL LAW ASSOCIATION

Regular ReportsComings & Goings ............... 3From The Editor ................... 2Librarian’s Report ................. 4President’s Message ............ 1Upcoming Dates & Events .... 1

ArticlesBrampton Civil Triage Court . 20CDLPA Fall Plenary 2015 ...... 9Central West Bencher Report 12Courts of Justice .................. 7Criminal Corner .................... 8Family Dispute Resolution .... 6Interest in Real Property ....... 5Judges’ Night 2015 .............. 2Lien Expiry Date.................... 3Lifetime Achievement Award 20New Books ........................... 16Options - Financial Difficulty . 15Parental Alienation ............... 18Parenting & the Profession ... 5Peel Advocacy Training ........ 17Registering a Lien ................ 13There are Happy Lawyers ..... 14Visit from Santa .................... 6

PRESIDENT’SMESSAGEby Mahzulfah Uppal

PEEL LAW ASSOCIATIONA. Grenville

and William DavisCourt House

7755 Hurontario Street, Suite 160Brampton, Ontario L6W 4T1

Tel: 905-451-2924Fax: 905-451-3137www.plalawyers.ca

EditorLeah Simeone

Managing EditorMelissa Firth

ContributorsDavid Alli

Paula BatemanEugene Bhattacharya

Maida de VeraJulie Dobson

Fiona DochertyMelissa Firth

Vince HouvardasWojtek Jaskiewicz

Marty KleinGerard Michaud

Scott PriceRaj Sharda

John SilvesterLeah Simeone

Mahzulfah UppalRae WhitePhotos

Melissa FirthMichael RasRaj ShardaRae WhitePublished by

Excel Graphics & Printing37 George St. N., Brampton ON L6X 1R5

905-792-3914Email:

excelinfo@excelgraphicsandprinting.cawww.excelgraphicsandprinting.ca

UPCOMINGDATES & EVENTS

Peel Law AssociationMEMBERSHIP RENEWAL

Please review the enclosed documents.Early bird renewal discount applies!

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Peel Law AssociationLIFETIME ACHIEVEMENT AWARD

January 18, 2016NOMINATIONS DUE by 5:00 pm

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Open House ConsultationBRAMPTON CIVIL TRIAGE COURT

January 18, 2016PLA Lawyers’ Lounge

Meeting begins at 5:30 pm SHARP!!

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Peel Law AssociationANNUAL GENERAL MEETING

February 25, 2016Terrace on the Green

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Peel Law AssociationPLA ANNUAL GOLF DAY 2016

August 22, 2016Lionhead Golf & Country Club

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Peel Law AssociationCONTINUING PROFESSIONAL

DEVELOPMENT 2016PROGRAMMING

Coming Soon!

Well, as I write this there about two or so weeks left in 2015. The time goes by quickly.

The PLA has had a very busy year. Our CLE’s for this year have finished and were very successful. The advocacy series is now complete and well attended. Thank you to all who committed their time.

The plans for the expansion to the Courthouse continue. There are numerous meetings with multiple stakeholders regarding the expansion, and the PLA is just one of those stakeholders. The PLA is ensuring that the needs of the Members are protected and advocated to the committee managing the expansion.

If there are questions or concerns please do not hesitate to contact the library to voice your questions, and to get information.

We wish to remind all members that they should not leave valuables, such as money, car keys and files unattended in the library. The PLA is not responsible for lost and stolen articles, but we would ask you to please keep all valuables with you, or you can ask library staff to assist you with keeping items secure.

Please also ensure that when you collect your coats and jackets from the locker rooms that you have your jacket. Many of the coats and jackets look the same and we have to make sure that coats are not inadvertently taken from the locker rooms.

Well, that’s it for this year. Please have a very safe and happy holiday. See you in 2016.

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Page 2

The Peel Law Association Judge’s Night was a splendid evening at the Terrance on the Green, in Brampton. Over 100 members and Judges from the Ontario Court of Justice, and the Superior Court of Justice were in attendance.

Judges Night is a unique event, whereby the attending Judges trade their ceremonial robes for suit jackets, and step off their daises to casually connect with members of the PLA. Each year the PLA invites Judges and member to come together to enjoy conversation and fine food, outside of the courtroom setting. This year in particular there was a palpable sense of enthusiasm among the crowd.

For the initial part of the cocktail hour, many members and Judges, stealthily stepped out of the dining room to catch a glimpse of the television in the lobby. Who could blame them? The Blue Jays were commencing Game 1 against the Texas Rangers.

The President of the PLA, Mahzulfaf Uppal, greeted everyone in attendance and thanked them for coming. While introducing the Judges and PLA Board members, no table was without applause. In fact, the attendees at the Regional Senior Justice, Peter Daley’s table were particularly enthusiastic with their heartened cheers. Similarly, it is worth mentioning that consistently raucous ovations came steadily from Justice Lise Parent’s table. Their fervent nature must have been good luck as there were also a few raffle ticket winners at that table.

Before dinner was served, OBA President and Peel Lawyer, Ed Upenieks, addressed the crowd and encouraged members of the PLA to get involved with their legal

JUDGES’ NIGHT 2015by David Alli

community. Justice Parent initially addressed the audience on behalf

of Justice Paul Currie, who was unable to attend. Justice Parent advised that the weekly scheduling model has already shown signs of success, given that it has resulted in a lower rate of fragmented trials and a corresponding reduced time to complete trials.

On behalf of the Family Bench, Justice Parent welcomed two new Judges, Justice Sonia Khemani and Justice Bill Sullivan. The Brampton Courthouse now has 5 full-time case management judges to hear family related matters. Additionally, it was announced that Justice Manjusha Pawagi would not be returning to the Brampton bench.

Justice Daley, discussed the 6 story extension to the Brampton Courthouse, and the tremendous necessity for new facilities. He indicated that the Superior Court and Ontario Court of Justice are working collaboratively in their discussions with the Provincial government to ensure

CAUGHT IN LITIGATION GRIDLOCK?

Little funds to go on fighting? Lawyer-assisted

Mediation-Arbitration EFFICIENCY WITH FINALITY!

Marty Klein is a family law lawyer who is an accredited (AccFAM) Mediator, trained in Arbitration, the Collaborative Process and Parental Coordination. He is a member of the ADR Institute, Ontario Association for Family Mediation (OAFM), the Peel-Halton Collaborative Practice Group, Med-Arb Peel, Association of Family and Conciliation Courts (AFCC) and Family Dispute Resolution Institute of Ontario (FDRIO).

Marty is a Deputy Judge in the Small Claims Court in Brampton and a Dispute Resolution Officer (DRO) in the Superior Court. He is also involved in numerous PLA and court related committees and community organizations.

Above all else, is Marty's relentless commitment to “fairness” and pursuit of "interest-based" - "no-court” resolution of conflict.

www.kleinlaw.ca ● www.wemedia.ca

Tel: 905-272-2540 Email: marty@kleinlaw.ca

LETTER FROM THE EDITORby Leah Simeone

Another year draws to a close. Everyone has worked hard through the fall, and the last month scramble to deal with year-end administrative work and CPD logging is now in full swing. Hopefully everyone will be taking a few days off to enjoy the holiday season and the coming snow.

Our AGM is coming up in the New Year- keep an eye out for the information for it. Don’t forget to show up for the meeting portion prior to the dinner, so that you can learn more about the work that the PLA board does and participate in the important discussions and motions that direct where the PLA board goes with it’s coming year. There are also more CLE courses and social events being planned by this year’s board, and we are excited to see you there.

Enjoy our winter edition of Peel Briefs, and we will see you in the New Year!

continued on page 13 ......

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COMINGS ANDGOINGS

2015

PLA MEMBER MOVES & UPDATESMartin Schulz, Barrister & Solicitor, is now located at

201 City Centre Drive, Suite 300, Mississauga, L5B 2T4.

PLEASE WELCOME NEW MEMBERS TO THE PLA

(as of October 2015)

Maurizio P. Artale of Eccleston LLP is located at 66 Wellington Street W., Suite 4020, Toronto, M5K 1J3, telephone: (416) 913-2043, fax: (416) 504-2686.

When a lien expires depends upon a number of factors, some of which are not in the control of the lien claimant.

The lien of a contractor (a person who supplied directly to the owner) expires 45 days after publication of the Certificate of Substantial Performance of the contract or the date the contract is completed or abandoned, whichever occurs first. The lien of any other person in the construction pyramid expires 45 days from the date of publication of the Certificate of Substantial Performance of the contract (between the owner and the contractor) or the lien claimant’s date of last supply, whichever comes first. If there is no Certificate of Substantial Performance, the triggering point is the date of contract completion, in the case of a contractor, or last supply, in the case of anyone else. However, where a Certificate of Substantial Performance has been published, it has the potential of shortening the lien expiry period.

In some cases, a subcontract is certified as complete, using a procedure in section 33 of the Construction Lien Act. If the subcontract is so certified then the lien of that subcontractor expires 45 days from the date of its last supply or the date the subcontract was certified as complete, whichever occurs first.

Where a person has supplied services or materials before and after the date of substantial performance of the contract, the lien rights for the supply on or before the date of substantial performance expire without affecting the lien rights for the supply after substantial performance.

The Act also contains a “deemed completion” provision which affects the lien expiry period of a contractor. A contract is deemed to be completed and services and materials are deemed to be last supplied when the price of completion, correction of a known defect or the last supply is not more than the lesser of, 1% of the contract price and $1,000.00.

INCORRECTLY CALCULATING THE LIEN ExPIRY DATEby Anna Esposito & Scott Price

Frank Genesee of Genesee Martin Associates is located at 25 Main Street W., Suite 2225, Hamilton, L8P 1H1, telephone: (905) 522-7066, fax: (905) 522-7085.

Peter Karam of Miles Backhouse Professional Corp. is located at 295 Matheson Boulevard E., Mississauga, L4Z 1X8, telephone: (905) 502-0070.

Alison R. Mackay, Barrister & Solicitor is located at 2 County Court Boulevard, Suite 201, Brampton, L6W 3W8, telephone: (905) 455-6000, fax: (905) 456-1209.

Harpreet Sachdeva of Kotak Personal Injury Law is located at 120 Traders Boulevard E., Suite 120, Mississauga, L4Z 2H7, telephone: (905) 755-8900, fax: (905) 755-8901.

Eric Vallillee of Kaldas Law is located at 2378A Bloor Street W., Suite 1, Toronto, M6S 1P5, telephone: (416) 767-0143, fax: (416) 767-5242.

If the lien expiry period falls on a Saturday, Sunday or holiday, then the lien may be preserved on the next day.

For those who thought that liening was nothing more than ‘counting 45 days’, this may come as a surprise.

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LIBRARIAN’S REPORTby Melissa Firth

In late October, I participated in a one day “Justice Innovation” event held in Toronto which was co-organized by the LSUC’s Action Group on Access to Justice and the Rural and Remote Access to Justice Boldness Project. About eighty individuals participated in this event to discuss building relationships between rural community legal clinics, information providers (libraries) and the public. It was an exciting day to participate in round table discussions aimed toward creating awareness and the sharing of ideas on access to legal resources around the province. I look forward to sharing more information as ideas and opportunities develop.

The library staff from the various Associations across the province met in Toronto from November 11-13, 2015 for the annual Conference for Ontario Law Association Librarians (COLAL). The meetings offered an opportunity to discuss significant issues affecting the libraries including promoting services, maintaining collections, publisher relations, electronic and print resources, funding and educational programming. The attendees observed presentations on new electronic products and developments from publishers.

This year’s conference included a few opportunities to formally and informally meet with the board members of various associations attending the CDLPA meetings which ran parallel to the COLAL sessions. In particular, the formal joint breakout session allowed the two groups to discuss membership services and opportunities for growth from two perspectives with the same end goal.

Peel was well represented with three Board members participating in the discussions (Wojtek Jaskiewicz, Vince Houvardas and Rae White) along with library technician Maida de Vera and myself. In addition, OBA President Ed Upenieks, who openly introduced himself as “Ed from Peel”, played a part in the consultations. One of the highlights came during the dinner held at the Albany Club when retired Supreme Court Justice, The Honourable Mr. Frank Iacobucci addressed the attendees – it was a truly moving experience.

On behalf of the PLA Board of Directors and all the PLA Library Staff we wish to welcome Sarah Pantusa. Sarah began working in the PLA Library in early November as a library technician – she started just in time to assist with preparations for sessions three and four of Justice Lemon’s advocacy series.

The library is closed as of 2:00 pm on the afternoon of December 24, 2015 and will remain so until reopening with regular business hours at 8:30 am on Monday, January 4, 2016.

OBA President Edwin Upenieks and PLA Law Library Director Melissa Firth with The Honourable Frank Iacobucci,

retired Supreme Court of Justice.

PLA Director Rae White with The Honourable Frank Iacobucci, retired Supreme Court of Justice.

On behalf of the PLA Library Staff, we hope you enjoy a safe and

joyous holiday season!

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continued on page 6 ......

There is a recent Court of Appeal decision, Korman v. Korman 2015 ONCA 578, which deals with the issue of determining the beneficial interest in real property when the title is solely in the name of one spouse and there has been a gratuitous transfer of title.

Title to a previous matrimonial home had been in joint names. When the parties purchased the subsequent matrimonial home, title to the home was solely in the wife’s name. The husband was being sued at the time the house was purchased. The proceeds of sale from the first home went into the second. This was seven years prior to separation. The husband received no consideration for the home being placed solely in the wife’s name.

The Court of Appeal held that s. 14 of the Family Law Act affirms the presumption of resulting trust in determining the question of ownership between spouses in the context of gratuitous property transfers. Any motivation that the husband had to shield the property from his creditors did not in itself rebut the presumption of resulting trust.

At issue is the non-titled spouse’s ability to share in the increase in value of the property post separation.

This issue is extremely important in dealing with the calculation of buyout figures, set offs and the calculation of equalization payments. Given the dramatic increase in property values in the past few years, there can be hundreds

BENEFICIAL INTEREST IN REAL PROPERTYby Paula Bateman

of thousands of dollars at stake when working on a settlement several years after separation.

s.10(1) of the Family Law Act provides authority for the court to determine questions of title between spouses. This includes determining whether or not legal title reflects beneficial ownership. Each party’s net family property must be determined prior to the calculation of an equalization payment.

By reason of s.10, trust claims, including those under s.14, may be advanced prior to equalization. Hence where s.14 of the Family Law Act is invoked, the presumption of a proprietary resulting trust would cause a finding of beneficial ownership. This conclusion would impact on the calculation of each party’s net family property and hence the equalization payment.

It is up to the titled spouse to rebut the presumption of a proprietary resulting trust. To rebut the presumption there needs to be clear evidence that the transferring spouse unconditionally and intentionally gifted their interest in the property to the spouse.

If the presumption is not rebutted, the non-titled spouse is a beneficial owner of a one half interest in the property and hence has an entitlement to share in any increase in value whenever it is realised.

I was pleased to see the positive feedback from my Pregnancy and the Profession article of last season. I’m inspired to keep analyzing my experience and writing about it, and hopefully in the future I will be able to pass on stories of other lawyers who balance the joys and challenges of raising a family while continuing to practice law in the Peel Region.

As I said in September, it’s so important to maintain an active discourse about family life and the profession. The first year of life with an infant is an extremely stressful and traumatic experience for both parents, and new parents often feel isolated and helpless. By opening up and sharing our experiences, we can demonstrate that new parents who are lawyers are NOT alone, and that there are a range of solutions and pathways to draw from as we move into a new stage of our lives.

Levi was born in July, and I was lucky enough to be able to take a significant amount of time off to share with him. My husband, being a teacher, was also off with me, and we were able to rely on family to help us through the first tender months. Levi is now 4 months old and my husband is back to school, so I am now on my own. Days at home with an

PARENTING AND THE PROFESSION, PART 1: LEAH GETS A LIFE.by Leah Simeone

infant are surprisingly full of otherwise unproductive things. Between diaper changes, feeding, washing, dog-wrangling, and remembering to eat, I achieve precious little else before the husband comes home from school. Let’s just say, I may or may not have ordered shampoo online for delivery rather than walking to the very nearby pharmacy.

Of course, thanks to my hyper-social spouse, I do still go out with friends, and head into the city for late nights. Levi joins us unfailingly, and he has been the hit of several dinners, parties and bar gatherings. We’ve purchased a carrier for him, as well as our must-have accessory- ear muffs to protect his hearing in the loud party environments (a very important tool for me as I have hearing loss and wish it on no-one else). On my own, however it’s easy to feel alone and yet unmotivated to drag myself out of the house to see other people.

So, one of the key things that I did was take a piece of advice from a friend, and I got a bit of a life. In this case, “life” has come in the form of pursuing a new hobby- drama. I am now in the upcoming production of “The Cat in the Hat Goes to Trial” which is being organized my our own

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...... continued from page 5

There’s been a lot of buzz around the family law community lately regarding the emergence of the newly formed “FDRIO” - Family Dispute Resolution Institute of Ontario. So, what’s it all about?

FDRIO is a not-for-profit organization which seeks to unite all “FDR” (family dispute resolution) professionals, across the province, consisting of family lawyers, mediators, arbitrators, collaborative professionals, coaches, financial professionals, child specialists, parenting coordinators, family violence specialists, financial divorce specialists, among many others.

FDRIO’s mission is to provide a place for all FDR professionals to network and share expertise, establish harmonized standards of practice and create compatible credentialing processes and certifications. It seeks to provide a strong, progressive and credible voice for the FDR field along with transparent, quality standards of practice for every FDR process wherever possible. Most significantly, FDRIO seeks to work alongside of the existing FDR organizations whenever possible, to share resources, collaborate on issues of training, harmonize standards and offer reciprocal recognition of certification.

The first annual FDRIO Week (November 23-27, 2015) was spearheaded with an amazing “All in the Family” conference, addressed by the Honourable Madeleine Meilleur, Attorney General, Janet Minor, Treasurer of the Law Society of Upper Canada, former Attorney General, Chris Bentley, Professor Julie MacFarlane, Faculty of Law, University of Windsor and Philip Epstein. Throughout the week several public events, conferences and forums were staged in Ontario.

Many FDR professionals provide services or expertise to help families in a variety of processes. The value to members of FDRIO is to belong to a single organization that meets as many of their diverse professional needs as possible, uniting them with one voice in order to enhance public awareness of the many available FDR processes.

FDRIO has a number of sections reflecting its diverse membership. Each section is mandated to do the work of the organization with a particular focus on the specific needs and interests of its area of practice. The current sections include Mediation, Arbitration, Finance, Parenting Coordination, Estates and Elder Care, Collaborative Practice, Therapists/Assessors, Consultants/Coaches, Children/Youth and Public Policy/Academic.

For further information on FDRIO go to: http://fdrio.ca/

 by Marty Klein

On Friday, December 11, 2015 the Brampton Courthouse Diversity Committee hosted a Festive Christmas Luncheon

outside of 107 Court. Santa Claus took a few moments out of his very busy schedule

to drop by the PLA Lawyers’ Lounge. Santa was happy to relax and pose for a quick photo before continuing on his

mission to spread cheer and good wishes while distributing a few candy canes along the way!

AN EARLY VISIT FROMSANTA

Justice Clay and Justice Maresca and PLA board member David Alli. I also auditioned for another play, an Agatha Christie murder mystery, after seeing a sign for auditions on the side of the street. To my own surprise I landed a role! The thrice-weekly rehearsals mean precious child-free hours a few times a week and refreshingly hilarious adult conversation with other dramatically inclined people.

Despite this solid beginning and getting back out there, I remain worried about losing touch with the legal world. A year (or even a few months) out of the legal data stream, and it’s easy to feel disconnected from the profession. I remain in regular touch with my office, by dropping in, calling to say hi, and joining in office gatherings. I continue to enjoy participating on the PLA board of directors, and attending the meetings. I write for the Peel Briefs and use it as an opportunity to research and write articles relevant to my field of law (family law). I attend CPD events.

Upon reflection, and interestingly enough, I now feel that I have a wider social life and activity schedule than I had while I was working. I suppose in an office environment, it was easy for my lovely colleagues to become my social life. Yet will my newfound “life” continue? Will these steps be enough to ease me back into the job when I return? Do any parents out there have any stories or experiences to share about this stage of their childrearing?

PARENTING AND THE PROFESSION

Page 7

I have been thinking of those conversations with clients that raise the (rhetorical) questions like “Where is the justice in the Courts of Justice?” My mind leaps to this quote:

The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be. Raymond Chandler (Anglo-American crime writer; 1888-1959) Perhaps we should do as some other jurisdictions do –

call our courts “Courts of Law”.I could talk to the client of the role of lawyers (regardless

of the type of law) in encouraging reasonable expectations. The law is a human institution and humans are flawed. We can strive for justice, but should not promise what cannot be delivered. We struggle to make the law and the courts better, but:

Human progress is neither automatic nor inevitable ... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals. Marlin Luther King, Jr. (American clergyman, orator, activist and prominent leader in the African-American civil rights movement; 1929-1968) I could talk about the origin of law. When two people

meet, there are rules to their interaction. It may be “pass on the left”. It may be “Give me stuff and I will not hit you with my club.” Once, when we were nomads living in small communities, we could walk away from trouble. But then we became agricultural, we became tied to the land. We could not walk away. The law became a necessity to manage the web of interactions on a continuing basis. Things became more complicated.

I could talk about the goals of the law as I see them: Keep the peace and create predictability in the transactions between people. It was not so long ago (and, sadly, we still struggle with this) that people relied on self-help and the vendetta to respond to “wrongs” and protect one’s interests.

“COURTS OF JUSTICE” by Gerard J. Michaud

In trade between people or communities, the rules need to be known and shared. To build wealth and improve one’s condition, we need that stability and consistency.

And, to make the law more acceptable, we try to ensure procedural fairness. Amongst the most important aspects of the administration of the law is the right to be heard (including the right to be given notice) and that decisions not be arbitrary or bias. (… and we still struggle with this.)

In a sense, the “how” of the law is as important as the “what” of the law. Beyond a system to resolve and prevent disputes, the law is also used to impose moral directives or engage in social engineering. The “manipulative” role will depend on the interests of the ruling elite of the time (or if you are more optimistic, the collective interest of the community). But “justice” changes as society (or the interest of the elite) changes.

In family law, “justice” was once punished the adulterer. Now, we generally consider a “just” society one in which people are free to seek and maintain the relationships that work for them.

“Justice” evolves or, at least, changes. One day’s justice can be another day’s injustice. (The existence of imputable values is another discussion.)

Justice for one may not mean justice for the many. The law is often a blunt tool, intended to serve the many. It can struggle to serve the few. The law struggles with the exceptions.

I would argue that the law and the rule of law is essential to the stability of civilization (or at least complex social groups). There can be no justice in chaos.

But I am often tempted to keep my discussion with clients about “justice” simpler:

Justice? You get justice in the next world, in this world you have the law. William Gaddis (American novelist; 1922-1998) These ideas on the practice of law are intended to

encourage thought and discussion. What do you think? How do you deal the “law vs. justice” question?

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Law

Page 8

The Ontario Court of Justice (Criminal) has a new local administrative judge, His Honour Mister Justice Paul Currie. Mr. Justice Currie has initiated a trial schedule system that is designed to complete matters in the Ontario Court of Justice on consecutive days. His Honours’ goal is to ensure that lengthy delays due to continuations are avoided and matters can be dealt with when they are properly scheduled for Trial. This initiative was done in consultation with the defence Bar and our concerns and criticisms as expressed to Mister Justice Currie were taken into account in the course of the institution of the new process. Early reports indicate that the new system is a success.

The Peel Justice Education Network recently participated in the Mock Bail Tournament. Local members of the Bar have been requested to volunteer to mentor high school teams participating in the activities. The next event will be the Mock Trials for high schools. Lawyers that are prepared to volunteer to assist mentoring teams should contact the Peel Law Association and provide contact information so that they can be assigned to high schools in the jurisdiction. This tournament is scheduled for February 26, 2016.

At the Annual General Meeting of the Peel Criminal Lawyers Association, on December 17, 2015, membership will elect a new executive. The Annual Beef Night will be scheduled for early next year and that date should be selected at the Annual General Meeting. Membership is $25.00 and new members are welcome.

THE PLA EMPHASIZES THE RIGHT TO COUNSEL OF CHOICE

The PLA has been raising the issue of the right of an accused person to be made fully aware of his or her choice of counsel, particularly in the first appearance courts in Brampton. In forums such as the OCJ Bench and Bar, our representatives have emphasized the importance of increasing the presence of the private bar in the early stage of proceedings in offering the initial consultations to accused persons, and providing the option to retain counsel where necessary. The judiciary and other players in our legal landscape have been generally receptive to the concerns

CRIMINAL CORNERby Eugene J. Bhattacharya and Vince Houvardas

raised by the PLA. Potential solutions which have been canvassed include: • ReminderbythepresidingJusticeofthePeaceofa

client’s right to consult with counsel of choice before taking any steps on their file.

• Clearcommunicationtothepublicbydutycounseland other court staff that a free consultation can be obtained by a private lawyer of one’s own choosing, as an alternative to lining up to see duty counsel.

• Systemicdistributiontoaccusedpersonsofmaterialsuch as the LSUC Lawyer Referral Service phone number as well as the PLA, PCLA and CLA websites.

• Signageinthecourthouseemphasizingtherighttocounsel of choice.

• Thepresenceofarepresentativein104courtfromthe PLA or PCLA advising the public of the right to counsel of choice and to assist with distribution of material regarding finding a lawyer.

Feedback from the PLA membership on this issue is welcome and will assist in formulating our submissions. Your comments and further suggestions on this issue can be forwarded to the PLA directly to the email address: library@plalawyers.ca.

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Other lawyers/mediators: Golan Yaron (Masters in Family Law), and Syed Kabir. Contact our Mediation Coordinator for further information about our services and fees.

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Page 9

A quick word from our time at the fall’s CDLPA plenary meeting. The first thing you should know is that there was a vote to change the name of CDLPA (County and District Law Presidents Association) to The Federation of Law Association (“The Federation”), which was passed. Award season is upon us and The Federation is strongly encouraging us to nominate from within our own membership. Nominations need to be submitted by January 29, 2016. The Federation would like to see the diversity of the profession better reflected in the nominations.

DEPUTY ATTORNEY GENERAL REPORTDeputy Attorney General Patrick Monahan gave a

luncheon speech talking about the provinces increase to the Legal Aid budget and how the Federal Government did not contribute any additional funds. There is a mandate letter on the Ministry’s website addressing issues like access to justice through technology and other online initiatives. There is a Justice round table being proposed to acquire input from all stakeholders in the legal system to discuss the access to justice issue. The standard answer of “need more resources” is not enough of an answer. They will not give us additional resources until we can show that we are using what we have efficiently enough.

LSUC MENTORING AND ADVISORY TASK FORCEThe task force’s focus is on either short term advising

on discreet issues or long term coaching. Established in November 2013, they are mandated to review and consider how to better address mentoring for lawyers and paralegals. The task force works through a collaborative, accessible and evolving approach that connects individuals with variety of sources, engages with activities currently in place, and builds on those activities. Please consider participating.

REPORT ON THE LAW COMMISSION OF ONTARIO

The current commission dates from 2007, arising from the Ontario Law Reform Commission. The commission is now independent of the Ontario Government with its’ own structure and funding along with a mandate to look at provincial laws and make recommendations about changes. The commission is currently working on the following issues: the administration of small estates, legal capacity, defamation law (specifically the internet), community safety, class actions and directing youth out of the criminal justice system.

LAW PROThe cost of the Real Estate Practice Coverage Option

(REPCO) which covers lawyers acting fraudulently with their credentials is going down to $100 which is a saving of $150. It is not likely the premium will go any lower. This is the cost of administering the program with a bit left over in

CDLPA FALL PLENARY 2015by Wojtek Jaskiewicz, Vince Houvardas & Rae White

case an actual claim is made. LawPRO wants to get paralegal shareholders in combined licensee (i.e. lawyer) firms to be brought into the LawPRO coverage so that all owners are covered under one policy. This avoids duplication of claims such as fights between the insurers.

The numbers for LawPro claims can be found on their website at www.lawpro.ca. The government recently changed the capital test for insurance companies increasing the minimum capital required. There were concerns that this would make it necessary to increase premiums but the government decided to phase in the requirement and LawPRO investment returns were better than expected. The result, no need to increase premiums.

LawPRO worked with Ontario Justice Education Network (OJEN) to create modules for high school students to learn about real estate as part of their law courses. This is being promoted by the government as an important element toward student’s financial and legal literacy. The topics in the module are: Introduction to Real Estate, Developing negotiation skills, Rental housing, Purchase and sale of a home, Mortgages, and Housing and human rights. The materials are available on the ojen.ca website.

ROUND TABLE OF DIVERSITY ASSOCIATIONSRODA is a group of diversity seeking associations.

There are currently 17 member associations and they will be holding a conference this upcoming year. They are now on the equity advisory group with the LSUC and have a seat at the TAG table. RODA is focused on two major issues in the upcoming year which includes networking and mentoring.

TREASURER’S REPORT

There is insurance coverage for each Association, including events with alcohol, paid for through CDLPA. They can provide a certificate to each Association to show that there is insurance in place. CDLPA initially projected deficits for 2013, 2014 and 2015 - this year there is no deficit. The three year funding proposal made to the LSUC has been approved with a 1% increase in the budget.

REAL ESTATE COMMITTEE REPORTThe issues fall into four themes: claims and competency,

response to ABS, solicitor representation and stakeholder issues and other business issues

The LSUC responded to the resolution by creating a real estate liaison group to discuss and examine these issues. A factor which will now help is that there are more real estate lawyers and solicitors generally among Benchers at Convocation. LawPRO responded by striking a joint professional competence and professional regulation committee to deal with real estate issues. LawPRO’s statistics show that real estate is not the highest area of claims by count but it is still the highest by cost.

continued on page 10......

Page 10

PROFESSIONAL STANDARDSThe LSUC has made recommendations for Amendments

to 4.2 (i.e. Marketing Rules). The LSUC put out a call for comments to the proposed amendments by October 16, 2015. The Federation put in their comments and copies were provided to attendees. There is concern about the direction of our advertising. The context and location of ads is raised in the body of the proposal but it did not follow through into the actual rule amendment or commentary. The Federation has taken the position that there is a need for the rules to apply to paralegals as well. Paralegals do not have commentaries under their rules and they have a separate set of commentary.

The Federation also proposed that Paralegals should be mandated to have to refer to themselves as paralegals in advertising, business cards, etc. to cut back on confusion for the public. They also proposed that members should have to provide certified translation of non-English advertising.

LEGAL AID REPORTThe Federation continues to work with the Alliance for

Sustainable Legal Aid to keep a check on LAO increasing transparency. New areas of coverage include certificates for negotiating separation agreements. The criminal certificate is to be more liberally issued where there is a consequence of a criminal record. An issue of concern is the 10% increase in LAO bureaucracy. LAO still professes a mixed system even though there is a clear increase for in-house LAO counsel, (i.e. duty counsel).

COMMITTEE REPORT ON PARALEGALSThe Federation working group on paralegals met twice

as well as with the LSUC. The working group is looking at advertising, especially misleading ads in specific ethnic communities and at brokers. The working group is looking to canvass what services are being provided by paralegals and the fee structures. They want to assess if paralegals are assisting with access to justice or are they just offering the same service as lawyers, at the same or potentially even higher fee.

The working group is asking for lawyers to provide experiences with paralegals acting in areas where they are not allowed to practice as well as information on what paralegals charge. There continues to be a push to allow paralegals to practice in family law.

ONTARIO JUDICIAL APPOINTMENTS ADVISORY COUNCIL

This committee deals with the process of judicial appointments to the Ontario Court of Justice. The committee is made up of three judges, three lawyers and seven lay people. The committee considers linguistic duality (English and French), gender balance, and racial diversity. The committee gets about 100 applications for each position.

Last year there were 27 appointments, this year there are 9 appointments with two pending.

THE DO’S AND DON’TS OF APPLYING TO BE A JUDGE:

LSUCOne of the main topics of discussion by the LSUC

include MAP reporting the usage of our Member Assistance Program is only at the low end of the range. Consider this a reminder that MAP is confidential and professional. It is open to all members of the Law Society as well as family members. It includes counselling, mentoring and even nutritional counselling.

The Law Society is also continuing to focus on the challenges faced by racialized licensees. Established in 2012, the group has held province wide consultations. A final report is due in 2016.

Areas of focus for TAG (the action group on access to justice established in June 2014):

Do spend time on your application and have someone else review and edit your application.

Don’t tell the committee that you want to be a judge because it’s the next logical step in your career.

Do choose references carefully, including judges. Judges speak to other judges who may be called by the committee.

Don’t tell other lawyers sthat you applied and you expect to be appointed. This will get out and shows bad judgment.

Do come to the interview on time and dressed professionally. Try to relax and engage your interviewer

Don’t exceed the guidelines on narrative questions. Don’t be overly personal or casual.

Do listen to the question asked and answer it.

Don’t fudge an answer. Some questions have no correct answer and the committee wants to see how you think.

Do make inquiries about issues at the location in which you applied. Be prepared to answer questions about your commute or relocation.

Don’t assume that you will be appointed in one jurisdiction and then will be transferred back to your home town.

...... continued from page 9

CDLPA FALL PLENARY 2015

continued on page 11 ......

Page 11

...... continued from page 10

CDLPA FALL PLENARY 2015

• Stepstojustice• Custodyandaccessassessors• Publiclegaleducation• Ruralandremotelibraries• Mentalhealth• Aboriginaljustice• Technologytoprovideaccesstojustice

Mentoring remains a priority for the LSUC and they are looking for mentors. General career advice needs to be included in the mentoring process and it is hoped that practical guidance will increase competency.

The Pathways Pilot Project examines the way we train and license lawyers, either through the LPP program or articling. There are new reporting requirements for articling to ensure consistency and currently of the 2300 in licensing process, approximately 500 are in the LPP.

The Law Society Tribunal has been relocated to the fourth floor of 375 University Avenue. The new location has three dedicated courtrooms as well as integrated technology and hearing devices. The new facilities are fully accessible and have meeting and board rooms.

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Page 12

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CENTRAL WEST BENCHER’S REPORT by Raj Sharda

As 2015 comes to an end, I wanted to first thank all the lawyers who supported me in my election as your Central West Regional Bencher. I have been appointed to the Mentoring and Advisory Services Proposal Task Force, Real Estate Working Group, Challenges Faced by Racialized Licensees Working Group and Equity and Aboriginal Issues Committee.

The Law Society has completed a strategic plan for the next four years. I look forward to reporting back to you on its implementation. I want to hear from you with concerns and suggestions regarding the Governance of our profession. Please contact me at Shardalaw@bellnet.ca if you have any suggestions. For instance, the LPP Program is also up for review and your input is welcomed.

There is a call for nominations for the 2016 Law Society Awards. The due date is January 29th, 2016. Applications can be found at http://www.lsuc.on.ca/awards-nominations/. I urge members to submit nominations for our esteemed colleagues.

Also on a side note my wife, Sona and I welcomed our daughter, our first child in September. I want to thank everyone for their support and blessings for Jyothi Lani Sharda.

Season’s Greetings to all and best wishes for 2016.

Page 13

While every attempt should be made to complete a Claim for Lien accurately, perhaps the most vital information contained in the Claim for Lien is the legal description of the land to which the lien attaches. Although there has been the odd exception, generally, if a lien claimant fails to identify the correct property, the lien will be found to be invalid. Such was the case in the 1998 decision of Electrical Equipment Co. v. General Motors of Canada where the lien claimant registered its lien on the defendant’s head office rather than its truck plant where the work was done. In Bravo Cement v. University of Toronto the court clearly stated that the discretionary power of the court under s. 6 does not extend to permit a court to validate a claim for lien where wrong lands are named. Identifying the wrong lands is a fatal flaw which a court is not empowered under the Construction Lien Act of Ontario to correct.

In Riverside Glass Ltd. v. Charron’s Quality Market Ltd. the defendant owned two adjoining lots, Lot 111 and Lot 112. The lien claimant supplied materials for the improvement of Lot 111 but registered a lien on Lot 112. Eventually Lot 112 was going to be used as a parking lot for the market that was being built on Lot 111. In reaching the decision that the lien was valid, the court relied primarily on the definition of “premises” in the Construction Lien Act which includes “the land occupied by the improvement, or enjoyed therewith”. The court invoked section 6 to “cure” the defect. This case is one of the very few where a lien on the wrong land was saved. In most ‘wrong land’ cases the lien is found to be invalid.

REGISTERING A LIEN ON THE WRONG LANDby Anna Esposito & Scott Price

Whether you won at trial and face an appeal or lost at trial and wish to launch

an appeal, we can help you determine the final outcome for your client.

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To sign up for the Lerners’ Appellate Advocacy Netletter, visit www.lerners.ca/appealsnetletter

that both Courts have their present and future needs met. Justice Daley also made a point to recognize the work of the Small Claims Court Deputy Judges for their hard work and dedication.

While the Blue Jays may not have ended that Game 1 on a winning note, the PLA did. Thanks to generous donations from members and Judges, the PLA was able to raise a record breaking amount for the Peel Aboriginal Network, $825.00 the Brampton Courthouse. Most of the attendees at the PLA Judges’ Night typically see each other within the confines of the bustling Brampton Courthouse. It was a welcome change of pace to slowdown and enjoy the company of the judiciary and colleagues for a memorable evening.

For more information on the Peel Aboriginal Network visit www.peelaboriginalnetwork.com.

JUDGES’ NIGHT 2015...... continued from page 2

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continued on page 17......

There are lawyers who have forged their own way through life, not having allowed their profession to become overbearing, nor overshadowing those things which give true meaning and real value in life. They have discovered that happiness is derived from “NO-THINGS,” but from the “WHOs” in life; that is meaningful relationships with partners, family, friends and other people.

I have also found, more often than not, that lawyers are most happy when they surround/invest themselves with awesome, happy people – not just “associates,” but people who truly care about you and each other. These are the kind of people who don’t equate happiness with the billable hour or the “almighty buck.” These are people who recognize that life is temporal and treat “means and ends” very differently in light of the bigger scheme of things.

Now this is so incredibly important, so please listen carefully: There are those of us who have learned not to take ourselves and circumstances so seriously. Believe it or not, the world will not end or turn upon our performances. If you mess up on a motion or miss out an important document or timeline, life will go on. It is those people who recognize and own up to their fault, who will move forward - all the better in the end. When we come to that place where we can truly believe that our business is “helping” others and not “saving lives,” we can only move forward being at peace with ourselves.

Peace. I need to say, unequivocally: The greatest – the ultimate way to achieve happiness, is to be happy with yourself. The way to achieve self-happiness is to be at peace with yourself. And before you can find peace with yourself, you need to make peace with others; those you have offended and who have offended you. Here’s the thing: You will find, that by making peace with yourself (and perhaps the universe) you will begin to love yourself (and not in a narcissistic way!) and you will then be able to be happy with others.

I want to reference a May 2011 article in “Psychology Today” by Tyger Latham, a licensed clinical psychologist practicing in Washington, DC, titled “Why Are So Many Lawyers So Unhappy?” He gives us a practical checklist for those in the legal profession:

1. Set realistic and obtainable goals based on what you have accomplished and experienced in the past.

2. Learn to prioritize your life, i.e., focus and put your efforts into action items that are truly important. Let go of those items that are either insignificant or not time-sensitive.

3. Recognize that “mistakes” are a part of life, essential, and often present the opportunity for important learning opportunities.

4. Be cognizant of your emotional barometer and use such information to evaluate whether you are achieving an optimal balance between life, work,

THERE ARE HAPPY LAWYERS: (Part 2 of 2)by Marty Klein

and play. If you are stressed out all of the time, pay attention to that information and make changes that will enable you to reach equilibrium.

5. Take your mental health seriously. Consider your mental health to be as important as any other professional obligation. As with psychologists, impaired attorneys often ignore the early warning signs of mental illness and risk placing themselves as well as others in serious jeopardy.

6. Seek balance in your life. Make sure you are taking time to care for yourself so that you can care for your clients. As with other high-pressure and demanding professions, attorneys who neglect their physical, psychological, spiritual, and interpersonal lives run the risk of making mistakes on the job.

7. Learn to manage your stress by finding healthy outlets for it. Whether you manage your stress through exercise, socializing, or channelling your energies into other, non-legal pursuits, be sure to make time for these things. In fact, schedule them into your calendar and view them as every bit as important as your weekly meeting with the partners.

8. Accept that the practice of law is inherently stressful. While it is important to accept this reality, it is not okay to succumb to it.

9. Know and take advantage of your personal strengths, while acknowledging, accepting, and minimizing your weaknesses. No one is perfect and those who assume they are, are not only insufferable to be around but also run the risk of over-extending themselves, failing at their jobs, and potentially disappointing those who count on them.

10. Remember that true professionals know when to ask for help and delegate responsibility. Be familiar with the resources available to you - be they personal or professional and utilize them. If you feel you are constantly “stressed out,” depressed, or struggling with substance abuse/dependence issues, get professional help immediately. Just as any psychologist would consult an attorney when addressing legal issues outside of their area of expertise, so too, an attorney should be prepared to consult a mental health worker if s/he feels ill-equipped to address the psychological stressors in her/his life.

Each day, we all have the misfortune of meeting lawyers who hate their jobs. They complain about clients, administration, fees, management, human resources, marketing and pretty much everything that legal practice is about. It doesn’t have to be that way! Really!!

So… What makes you happy? I mean… what REALLY

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One of the most difficult decisions that your client can make is to seek professional help to deal with financial difficulties. Once that decision is made, what are the options? There are various options available under the Bankruptcy and Insolvency Act (the “BIA”) and the Companies’ Creditors Arrangement Act the (the “CCAA”) to restructure a business’ debt in order to save a failing business.

Generally there are four formal options available to restructure:

1. a bankruptcy under the BIA;2. a receivership under the BIA;3. a proposal under the BIA; or4. a restructuring under the CCAA.

BANKRUPTCYIn a bankruptcy all of the assets of a company vest in, and

are sold by, a Trustee in Bankruptcy with the proceeds paid to creditors. This means the business owner loses control of the business. The Trustee’s ultimate goal is to maximize recovery for the creditors.

How can a bankruptcy be used to restructure a business? The Trustee will sell the assets of the business to the highest bidder. The owner will often be in the best position to know what the maximum value of the assets is and to bid that amount. If the bid is successful, the owner purchases the assets of the business but is not subject to the unsecured liabilities of the business.

There are two primary disadvantages to using a bankruptcy to restructure. First, the bankruptcy only affects unsecured creditors. Secured creditors (such as creditors who register pursuant to the Personal Property Security Act or creditors who hold mortgages) cannot be compromised in a bankruptcy. Second, the owner loses control of the process and the business. The Trustee selects the winning bid, which may not be the bid submitted by the owner.

A bankruptcy can be used effectively where there is no secured debt or where the business owner guaranteed the secured debt and will have to pay it in any event.

RECEIVERSHIP

A receivership is primarily used by secured creditors to enforce on security however in limited circumstances it can also be used by a business to restructure. Like a bankruptcy, in a receivership the Receiver takes control of the business, runs a sale process and finds a purchaser for the assets of the business.

Only secured creditors can appoint a receiver under the BIA. The business owner has to be a secured creditor by securing advances into the business or purchasing existing secured debt.

The business owner can bid on the assets of the business and, if successful, can buy the assets free and clear of all

OPTIONS TO DEAL WITH FINANCIAL DIFFICULTYby Wojtek Jaskiewicz

encumbrances (such as security interests, mortgages and liens).

The receivership solves the first of the two problems with the bankruptcy – compromising secured creditors – but it does not solve the second – losing control of the process. The Receiver will select the winning bid and the business owner has no control over the selection process.

PROPOSAL UNDER THE BIA

Unlike a bankruptcy which is designed to liquidate the assets of a failed business or a receivership which is designed to allow secured creditors to enforce on security, a proposal is designed to be used by a business to restructure its debt and to continue operating. The primary purpose of a proposal is to make an offer to creditors, called the Proposal, which will be voted on by the creditors.

In a proposal the owner remains in control of the business and in possession of the assets while working on the Proposal. In this process a Proposal Trustee is appointed to monitor the business and to report to the creditors which gives the creditors comfort that the assets are secure.

The process is started by filing a Proposal or, more commonly, by filing a Notice of Intention to Make a Proposal (the “Notice of Intention”). Filing a Proposal or a Notice of Intention prevents all creditors, including secured creditors, from taking any steps to collect for 45 days. During this period creditors cannot sue, cannot take steps to enforce judgments, and cannot enforce on security.

A Proposal is subject to strict time limitations. While working on its Proposal, the business can go back to court to ask for further 30 day extensions of the initial 45 days, to a maximum of six months.

Once the company completes its Proposal the creditors vote on it and it must be approved by the court. If the Proposal is accepted by the creditors and approved by the court then it can be binding on all creditors.

A Proposal can have terms that:

• compromisecertainclaimsagainstdirectors;• allowforfinancingrankingaheadofsecuredcreditors;• preventthirdpartiesfromterminatingcontractsfor

non-payments prior to filing; and• terminateundesirableagreementssuchascommercial

leases for real estate.

One disadvantage of a Proposal is that if it is not accepted by creditors or not approved by the court the business is automatically deemed to make an assignment in bankruptcy.

Even with these limitations the proposal is often the best option for anything other than the largest business.

RESTRUCTURING UNDER THE CCAA

The majority of restructuring proceedings that become

Page 16

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newsworthy, such as Air Canada, Stelco, or, recently, Target, are completed under the CCAA. A restructuring under the CCAA is similar to a proposal in that the owner of the business remains in possession of the business with a court appointed Monitor monitoring the business to protect the interests of creditors however the CCAA is limited to companies with debts exceeding $5 million. Companies with debts below $5 million can only use the three other processes set out above, and primarily the Proposal process.

Like with a Proposal, the aim of a CCAA restructuring is to restructure the company with a view to it becoming viable. The biggest difference between a proposal under the BIA and a restructuring under the CCAA is that the CCAA process is much more customizable but much more expensive whereas the Proposal is a much more structured process at a significantly lower cost.

Recognizing that a business is in financial distress at an early stage and then addressing the financial distress quickly with the appropriate mechanism is key to ensuring the continued success of a business.

OPTIONS TO DEAL WITH FINANCIAL DIFFICULTY

TExT BOOKS• 2016OntarioFamilyLawPractice,+CD-ROM,2015.

Steinberg et. al.• 2016OntarioFamilyLawPracticeRelatedMaterials,

2015. Steinberg et. al.• 2016 Ontario Motor Vehicle Insurance Law &

Commentary, 2015. Firestone.• The 2016 Annotated Bank Act with AssociatedRegulations,+CD-ROM,2015.David,LegaultDooley.

• TheExecutor’sHandbook,5thed.,2015.Greenan.• Advertising and Marketing Law in Canada, 5th ed.,

2015. Pritchard, Vogt.• Bennett on the Commercial List, 2nd ed., 2015.

Bennett.• CanadianImmigration&RefugeeLawPractice,2016.

Waldman, Lorne.• CanadianIncomeTaxLaw,5thed.,2015.Duffet.al.• Commercial Insolvency in Canada, 3rd ed., 2015.

McElcheran.• LawofChequesandPromissoryNotes:TheLawand

Practice, 2015. Sarna. (Loose Leaf)• The Law of Search and Seizure in Canada, 9th ed.,

2015. Fontana, Keeshan.• TheLawofWork:CommonLawandtheRegulationof

Work, 2016. Doorey.• Manning, Mewett & Sankoff Criminal Law, 5th ed.,

2015. Manning, Sankoff.• Practitioner’sCriminalCode2016Supplement,2016.

Gold. • Procedural Strategies for Litigators, 3rd ed., 2015.

Morton.• YouthandtheCriminalLawinCanada,2nded.,2015.

Davis-Barron.

HALSBURY’S LAWS OF CANADA• Halsbury’sLawsofCanada,FirstEdition,Commercial

Law I; Agency; Auctions; Bailment, Betting, Gaming, Lotteries, 2015 Reissue. Coombs; Nemet-Brown; Botten; Hincer; Hynes.

• Halsbury’sLawsofCanada,FirstEdition,CommercialLaw II; Bills of Exchange, Consumer Protection; Sale of Goods, 2015 Reissue. Coombs; Bush; Steeves.

• Halsbury’sLawsofCanada,FirstEditionCompanion:Guide and Consolidated Index, Release 15, 2015. Ablack et al.

NEW BOOKS in the PLA LIBRARYDECEMBER 2015

• Halsbury’sLawsofCanada,FirstEdition,IncomeTax(International), 2015 Reissue. Krishna; Hole; Khirdaji; Hynes.

• Halsbury’s Laws of Canada, First Edition,Transportation; Trusts, 2015 Reissue. Fernandes; Hoffstein.

LAW SOCIETY OF UPPER CANADA – CPD• 16thAnnualEmploymentLawSummit,2015.LSUC.• 23rdAnnualImmigrationLawSummitDayOne,2015.

LSUC.• 23rdAnnualImmigrationLawSummitDayTwo,2015.

LSUC.• Bankruptcy and Estates Law: Administration of the

Insolvent Estate, 2015. LSUC.• Best Practices for Paralegals Appearing before the

Human Rights Tribunal of Ontario, 2015. LSUC.• CivilLitigationPracticeBasics,2015.LSUC.• IndigenousLawIssues,2015.LSUC.• Representing Children in Personal Injury Actions,

2015. LSUC.• TheSix-MinuteEnvironmentalLawyer,2015.LSUC.• TheSix-MinuteRealEstateLawyer,2015.LSUC.• SecuritiesLawUpdate,2015.LSUC.

Page 17

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This year, the Peel Law Association was pleased to present the 2015 Advocacy Training Series. This series was the product of a committee composed of dedicated PLA members and overseen by Justice Lemon. We were pleased to join Marty Klein, Sherri Moss, Christine Tory, Frankie Wood, John Mullen and (now Justice) Marvin Kurz in working with the committee, which started developing the series around this time last year.

There were four segments within the series which covered the progressive stages of trial proceedings from the strategic planning of a case, through Interlocutory proceedings to the trial stage itself. The first segment, called Strategy and Planning, featured a panel of lawyers who presented on aspects such as the initial interview, developing the case, strategy and planning and the use of experts, among other topics. We were pleased to welcome our panel of local counsel consisting of Melina Celap, Mathew Fordjour, Kimberly Jagula, Daniel Lerner, Alison Mackay, Michael Moon, Marcy Segal and Rae White who provided various perspectives from the Civil, Criminal and family law points of view. The final speaker of the evening was Justice Lemon himself, providing us with an enlightening view from the bench.

The second segment, Interlocutory Proceedings, featured the perspectives from the Superior Court regarding bail hearings, reviews and motions. Presenters included Justice Nancy Mossip, Justice Joseph Fragomeni and Justice Gordon Lemon. Tips from the bench proved invaluable to the attending lawyers, emphasizing the aspects such as brevity and concise effective advocacy that most impress the Bench. Marty Klein and John Mullen (who also organized the segment), joined Eugene Bhattacharya as the counsel presenters. The PLA thanks this panel and the excellent materials provided for that segment.

On November 12, 2015, the third session was held on Trials. Under the direction of Frankie Wood and the assistance of the 3 panel Superior Court of Justice Judges - Justice Durno, Justice Dawson and Justice Donohue, it was a compact informative session covering the entire trial. Topics included document preparation, witness examination, evidence/exhibit presentation, ethics and decorum. The presenters prepared excellent materials that every lawyer should review prior to his/her next trial.

The final segment of the series was a motion/trial workshop. Panel members form the bench included Justice John R. Sprout, Justice Gisele M. Miller and Justice Lemon. Materials were given out in advance to the attendees setting out facts scenarios which were the subject of demonstrations and discussions. The criminal facts scenario was a sentencing exercise where the accused was convicted of manslaughter. A demonstration was presented with crown attorney, Sandra Martins, arguing the crown role, and defence counsel Paul O ‘Marra presenting for the defence. This demonstration proved to be a template of effective advocacy which was then reflected on by the panel. Paul also gave us an excellent presentation on effective sentencing strategies.

In the civil context, a complex motion demonstration was argued by Christine Tory and Marvin Kurz. This proved to be Marvin’s last role as an advocate as we we were

PEEL ADVOCACY TRAINING SERIES 2015by Vince Houvardas and Fiona Docherty

simultaneously learning of his appointment to the OCJ bench in Milton. Congratulations Justice Kurz!

The PLA would like to thank Justice Lemon for spearheading and overseeing this productive and well attended series. Such endeavors presented by the Peel Law Association continue to provide CLE hours to our membership, while assisting in the ongoing development of our local defense bar as professionals.

THERE ARE HAPPY LAWYERS!

350 Rutherford Road SouthPlaza II, Suite 208

Brampton, OntarioL6W 4N6

Tel: (905) 457-0922Fax: (905) 457-6134

Website: www.ghcas.com

Calvin Goldenberg, CAE-mail: calvin@ghcas.com

Vijay Hemanchal, CA, CFP, CPA (IL)E-mail: vijay@ghcas.com

makes you happy? If you are not happy, take a timeout. Think about it. I mean deeply think about where you got off the track. Go back to the root of your dilemma and get back on track.

And finally! Be grateful. I can’t end this Rant without saying something I have to constantly remind myself of, and that is being grateful or thankful.

There’s this professor of Psychology named Robert Emmons, at the University of California. This is a guy who has been studying “gratitude” for almost ten years and is considered to be the world’s leading authority on “gratitude.” (What do I know?) And, he has actually written a book titled, “Thanks!: How the New Science of Gratitude Can Make You Happier.” This book is based upon research studies involving thousands of people from around the world. One of the conclusions which his research shows, is that practicing gratitude (or thankfulness) can actually increase your level of happiness by around 25%!

The word “gratitude” is defined as “that quality or feeling of being grateful or thankful.” The challenge is that none of us is hardwired to be grateful. So why be grateful? Because being gratitude puts our lives and circumstances into perspective. When we see the good as well as the bad, it becomes more difficult for us to complain. As gratitude helps us realize and appreciate what we have, it lessens our need for wanting more and more. And ultimately… gratitude strengthens relationships, improves our health, reduces stress and, in general - makes us happy…

Page 18

Family law practitioners know that claims of “parental alienation” are increasingly being made in our courts as well as in our offices when we meet with clients who are frustrated with their child access arrangements. It is thus useful to be aware of the fact that an ongoing debate is taking place among academics and mental health professionals as to the extent to which “parental alienation” exists and indeed whether it is a recognizable mental health condition. The debate will be described in the following paragraphs.

April 25 is now recognized as Parental Alienation Awareness Day in 25 countries as diverse as Canada, Australia, Brazil, Costa Rica, Ireland, Singapore and South Africa. The first of these annual days was held in 2006, and details can be found at www.paawarenessday.com. It is thus perhaps not surprising that a study published in 2010 concluded that “there has been a very significant increase over time in the number of cases explicitly raising ‘alienation’ issues in the Canadian courts” (Bala et al., 2010). Professor Bala and his colleagues found 40 decisions with a finding pertaining to parental alienation between 1989 and 1998, with the judge concluding that alienation had occurred in 24 of those cases. Between 1999 and 2008, however, the courts found alienation in 82 of 135 cases. The alienated parent was awarded sole custody in 49 percent of the cases in the entire study where alienation was found.

The term “parental alienation syndrome” was created in 1985 by child psychologist Richard Gardner as an explanation for cases that he believed consisted of false allegations of child sexual abuse, and in the years since then, the term has been extended to cover virtually all cases in which a child refuses to visit a non-custodial parent (Bruch, 2001). Parental alienation syndrome is differentiated from “ordinary programming or brainwashing” in that the phenomenon is initiated by the parent who programs the child, but the child actually adds his or her own material into the list of complaints and accusations against the other parent (Faller, 1998).

Proposals have been advanced by mental health professionals and academics that parental alienation be included in the Diagnostic and Statistical Manual of Mental Diseases (DSM) and the International Classification of Diseases (Bernet and Baker, 2013). It would appear that these proposals have been met with strong resistance, with some analysts concerned by the notion of labelling children of high-conflict divorce with a mental condition. As far as I can determine, parental alienation has not yet been included in the DSM.

Dr. Amy Baker is a Ph.D. researcher in the United States who has written extensively on parental alienation and parent-child relationships in the context of acrimonious parental separations. Baker defines parental alienation as follows:

... PA (i.e., parental alienation) is a mental condition in which a child, usually one whose parents are engaged in a high-conflict separation or divorce, allies himself strongly with one parent (the preferred parent) and rejects a relationship with the other parent (the alienated parent) without legitimate justification. PA features abnormal, maladaptive behaviour (refusal to have a relationship with a loving parent) that is driven by an abnormal mental state (the false belief that the rejected parent is evil, dangerous, or unworthy of love).

Baker conducted an interesting study in 2004 to ascertain the extent to which people identify as having been alienated during their childhood from a parent due to the actions and attitudes of the other parent (Baker, 2006). Subjects were recruited during a two-month period from word of mouth and from postings on the internet, and forty-two adults volunteered to participate in the survey.

Baker noted that the fact she had little trouble finding people willing to talk about their experiences suggests that the concept of being turned against a parent resonates with the actual experiences of many people. Her study is an interesting read on how people recall being affected by the animosity of one parent towards another parent, although the article does not explain how the participants eventually came to the realization of what had occurred. One noteworthy finding is that the alienation was not necessarily internalized at the time, as some participants reported that they held onto some positive feelings toward the targeted parent. One participant recalled “being made to call his father on the phone and spout vile curses at him” even though “at the time he was saying these things he had been secretly hoping that his father knew that he didn’t mean it”.

Baker states in her website (www.amyjlbaker.com) that researchers have identified seventeen primary potential parent alienation strategies, including sending poisonous messages to portray the targeted parent as unloving, unsafe and unavailable, limiting contact between the child and the targeted parent and undermining the authority of the targeted parent.

In a 2013 article, Baker and Vanderbilt University professor William Bernet summarize research that has been conducted to obtain evidence of parental alienation symptoms, and they argue that “there is almost no dispute amongst mental health professionals who work with children of divorced parents that PA occurs in many children whose parents engage in persistent, intense conflict” (Bernet and Baker, 2013). Furthermore, they note that the clinical literature on children who have been abused is “quite consistent on the point that they do not typically reject the parent who perpetrated the abuse against them”, and that in fact such children are more likely to blame themselves

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as opposed to the abusing parent in order to maintain a relationship with that parent. Such findings would appear to undermine the rationale of the presupposition that a parent who is rejected by a child must have done something terrible to the child to warrant such scorn. In a nutshell, rejection tends to flow from alienation but not from actual abuse.

On the other hand, psychologists Steven Friedlander and Marjorie Gans Walters argue that pure cases of alienation are rare, and that most cases are a “hybrid” mixture of alienation, estrangement and enmeshment (Friedlander and Walters, 2010). Enmeshed parents have relationships with their children where psychological boundaries have not been adequately established, and the child has difficulties in separating himself or herself from the parent. Friedlander and Walters argue that courts need to consider the extent to which enmeshment is part of the problem, as a high level of enmeshment can make a change in physical custody very traumatic for the child. They further opine that in cases that combine elements of both enmeshment and alienation, the major contributor to the problem is usually the enmeshment, with the resulting alienation often a symptom of the enmeshment.

Friedlander and Walters state that an enmeshed relationship between child and parent requires intervention on multiple fronts, including psychotherapeutic work to address the parent’s fear of losing the child, as well as “a heavy dose of strategic coaching and education, including a redirection of the parent’s neediness to appropriate sources other than the child”. These intervention techniques are seen by the authors as helping a child to separate from an enmeshed parent, as opposed to an actual change in custody and all of the accompanying emotional challenges for a presumably vulnerable child.

With respect to estrangement, Friedlander and Walters focus on cases where the estrangement is primarily based upon the rejected parent’s limitations and deficits. They note that at first glance the child’s rejection of the parent may appear to be caused by alienation, but a “closer look reveals that the parent’s behaviour is sufficiently misguided to cause damage to the relationship with the child”. The child’s reluctance to have a relationship with such parent is thus based at least partly on factors beyond simple alienation influences from the preferred parent.

Friedlander and Walters further note that a rejected parent will often act in a way that reinforces the negative perceptions of the child, and that the scenario may be further complicated by the fact that the rejected parent’s ability and authority to parent has been compromised. Good parenting sometimes requires a parent to correct or even discipline a child who has behaved inappropriately, but if the child exhibits a disrespectful attitude towards the rejected parent, that parent runs the risk of further damaging his or her relationship with

the child if parental authority is exercised. An intervention strategy of having the child spend more time with a rejected parent “may thus have the unintended paradoxical effect of reinforcing the child’s avoidant behaviour”.

Friedlander and Walters have found that few parents set out to intentionally “brainwash” a child with a conscious goal of destroying the relationship between the child and the other parent. Similarly, psychologist Terence Campbell wrote in a 2005 piece that parental alienation can occur without a premeditated agenda (Campbell, 2005). He argued that high anxiety levels can affect a person’s judgment ability, and that there are anxiety-driven stereotypes in which one parent essentially assumes the worst about the other parent. A nervous and emotional custodial parent often expects to find evidence of the access parent’s selfishness and irresponsible behaviour, and as the child provides a perhaps somewhat ambiguous account of an access visit, it can be relatively easy for the custodial parent to draw negative inferences and to become increasingly determined to protect the child from the less-than-stellar access parent.

To some things up, I have attempted in the above paragraphs to provide a flavour of the parental alienation debate that can be found on the pages of academic and professional journals. Family law practitioners who find themselves in a custody or access case that raises issues of potential parental alienation may wish to review the submissions that are being made within this debate.

ReferencesBaker, A. (2006). Patterns of parental alienation

syndrome: a qualitative study of adults who were alienated from a parent as a child. The American Journal of Family Therapy, 34: 63-78.

Bala, N., Hunt, S. & McCarney, C. (2010). Parental alienation: Canadian court cases 1989-2008. Family Court Review, 48(1), 164-179.

Bernet, W. & Baker, A. (2013). Parental alienation, DSM-5, and ICD-11: response to critics. Journal of the American Academy of Psychiatry and the Law, 41(1): 98-104.

Bruch, C. (2001). Parental alienation syndrome and parental alienation: getting it wrong in child custody cases. Family Law Quarterly, 35, 527-552.

Faller, K. (1998). The parental alienation syndrome: what is it and what data support it? Child Maltreatment, 3(2), 100-115.

Friedlander, S. & Walters, M.G. (2010). When a child rejects a parent: tailoring the intervention to fit the problem. Family Court Review, 48, 97-110.

PARENTAL ALIENATION: The Debate Continues…...... continued from page 18

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NOTICE TO THE PROFESSIONBRAMPTON CIVIL TRIAGE COURT

On Monday, January 18, 2016 the Peel Law Association will host an open consultation beginning promptly at 5:30 pm in the PLA Lawyers’ Lounge. Please arrive no later than 5:20 pm.

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PEEL LAW ASSOCIATIONLIFETIME ACHIEVEMENT AWARD

At the 2015 Annual General Meeting of the Peel Law Association, the Board of Directors presented the sixth Lifetime Achievement Award honouring the late Thomas C. Hendy Q.C. It is the goal of the Board of Directors to present the award annually at the Annual General Meeting dinner.

The Lifetime Achievement Award recognizes the substantial contributions made to the practice of law and the local community by a past or present member of the Peel Law Association. The nominated individual will have held a minimum of ten years of continuous membership with the Peel Law Association. It is the Board’s intention to formally recognize members of our own legal community for their years of dedication and service.

Please complete the following information and forward all relevant documentation directly to the PLA for the consideration of the Nominating Committee as provided below.

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