LawLine Journal

Common-Law Relationships and Separation

2009-01-07T13:28:00.000-08:00

Anna and Baron have been living together for 8 years. Anna works as a part time nurse, and Baron owns a successful employment agency. Baron owned a house when they initially got together but sold it and used the 75K towards a house together. Anna had no money at the time but for the first five years shared the mortgage payments with Baron. Baron told Anna initially that it would be better if he is the only one on title since he was putting the deposit down, but that it was ‘their house’. Anna has not paid towards the mortgage for 3 years but does everything else for Baron – housekeeping, cooking, and even house renovations. Baron has not had to hire a receptionist/office manager for the employment agency business because Anna has happily fulfilled this role understanding that the business is a major source of income for Baron and herself.

Anna calls me at LawLINE and tells me Baron has asked her to move out. Furthermore he states that because they were not married she is not entitled to anything. Anna tells me that her friend told her that in BC once you live with someone for 2 years you have a common law marriage anyway. Is this true? If she moves out will she lose her ‘claim’ to anything from him?

After calming Anna down I tell her that there are a few issues here, the best thing to do would be to go through them one by one. I tell her that what we do at LawLINE is give brief, next step legal advice but that after getting some advice from me, and doing some research, she would also benefit from seeing a family lawyer to get some specialist advice.

I tell Anna that in it’s a common misconception that in BC after a certain period of time that one becomes ‘married’ by common law. The only way to become married is to hire a wedding commissioner and choose to marry. What the BC provincial law does tell us about couples that live together for 2 years in a ‘marriage like relationship is that they are defined as a ‘spouse’.
‘So how does that differ from being married?’ Anna asks me.

I tell Anna that for things like spousal support and child support there is very little difference (except there are some time limitations to make a claim for spousal support). There is however a difference when it comes to property division. Married persons can take advantage of the Family Relations Act provisions (part 5) that sets out in section 56 that each spouse is entitled to a half interest in ‘family assets’. Unmarried persons are not able to make a claim under this section, in fact the division of property for unmarried persons is not covered at all in the Family Relations Act.

I can hear Anna taking a sharp breath in. I go on to tell her that this does not mean she is not entitled to anything. If assets are owned jointly then they are presumed to have an equal interest. If the asset is owned by one person, but the other wants to make a claim for a share in the asset, then they need to make a claim under an area of law called trusts. This is best described by JP Boyd on his website JP Boyds Family Law resource. He describes the division of individual assets as:

The essential point of a trust claim is that the non-owning party has, or should be considered to have, a stake in property owned by the other party. The non-owning party's interest in that property is said to be held "in trust" for the non-owning party by the person who owns the property on paper. The non-owning party who is the beneficiary of a trust held by the owning party is entitled to receive compensation for his or her interest in the property subject to the trust. JP Boyd http://www.bcfamilylawresource.com/

I go on to tell Anna that she would need to start the action against Baron (if they can’t settle it between them) in the Supreme court and she would need to prove to the court that Baron was ‘unjustly enriched’, she was correspondingly deprived, and that there is no legal reason for the enrichment. Given the type of claim she has she would be well advised to hire a lawyer for this. She should not presume she would get half either, the courts would look at her contributions (not just financial) and his.

She would be well advised to review JP Boyds site, and the LSS Family law website (http://www.familylaw.lss.bc.ca/) so she is armed with some information before going. She should also consider making a claim for spousal support, she has a time limit of one year after the relationship ends to make a claim. This she can also discuss with a lawyer.

IS TWELVE A MAGIC NUMBER?

2008-06-04T15:45:00.000-07:00

Nope. Not when it comes to family law, anyway.

There’s a popular misconception that when a child turns twelve, he or she can choose which parent he or she wants to live with.

The truth is that while the preference of the child may be relevant when making custody decisions, there is no specific age at which the preference automatically decides the issue.

A more accurate saying is: babies go where you put them, children go where they’re told, and teenagers vote with their feet. But in practice, each case turns on its own facts. The preferences of children as young as eight and nine has been considered by judges in some cases. This is especially true where the child appears to be mature and thoughtful for his or her age. However, the child’s preference does not bind the judge, whose decision must always be based on the overall best interests of the child. If the child’s desire is based on poor reasons or there are other, more important facts, the judge may grant custody to the other parent. However, by the time a child is near adulthood, judges will generally recognize that a custody order that contradicts the child’s preference will be impractical.

So now you know: there’s no magical number, just a practical spectrum.

Extra Money for People Looking After Children of Relatives

2008-02-08T10:19:00.000-08:00

Sarah has been taking care of her 3 year-old nephew, Paul, for the past 4 months. Paul’s mother, Mary, had to leave the country and Sara had expected that she would be back by now. But Mary’s plans have changed, and now she is not expected back for another year. Sara works full time and has been trying to make ends meet but with two children of her own to support, she can no longer afford to support her nephew without some financial help.

I tell Sarah that a relative who cares for a child residing in his or her home may be eligible to receive monthly Child in the Home of a Relative (“CIHR”) benefits from the welfare ministry a.k.a. the Ministry of Employment and Income Assistance (“MEIA”).

The criteria for these benefits are set out in section 6 of the Employment and Assistance Regulation (see http://www.eia.gov.bc.ca/PUBLICAT/VOL1/Part3/3-3.htm#6 ). The main criteria are:

(a) the child must reside with a relative,
(b) the child’s parent must have placed the child with the relative,
(c) the child’s parent must not reside with the relative,
(d) the relative and any other adults aged 18 and over in the relative’s household must authorize MEIA to conduct a criminal record check, and to review whether they have had prior contact with the Ministry of Children and Family Development (“MCFD”). They must also agree that MEIA can use this information to conduct a safety audit to determine if the relative’s home is a safe placement for the child;
(e) MEIA must decide, after a safety audit, that the relative’s home does not pose a level of risk to the child that would make it an inappropriate place for the child;
(f) there is no “kith and kin agreement” with the Ministry of Children and Family Development (in which case other funding may be available from that Ministry)

“But,” says Sarah, “I work full-time, and so does my husband. Isn’t MEIA the welfare ministry? How can I be eligible for welfare benefits?”

I explain that MEIA is indeed the ministry that administers welfare benefits in B.C., but a relative who is caring for a child in their home does not need to be financially eligible for welfare in order to receive CIHR benefits on behalf of the child. Furthermore, the care-giving relative’s household income and assets are not considered in determining whether they are eligible for CIHR benefits on behalf of the child.

“So how much is the benefit?” she asks. I tell Sarah that it depends on the age of the child. There is a chart of the different rates at http://www.eia.gov.bc.ca/mhr/cihr.htm. For a 3 year-old like Paul, the maximum is $257.46 per month. MEIA does expect a child’s parent(s) to contribute to the child’s care. However, if the parent(s) cannot or do not contribute, they do not pursue the parents for child support. If Mary contributes to Paul’s care, any amounts she gives Sara will be deducted from the CIHR benefit.

“What do I need to do to show MEIA that Mary placed him with me?” Sarah asks. Before Mary left B.C., she wrote a notarized letter giving Sara the authority to care for Paul until further notice, and also confirms that Paul’s father, Joseph, is deceased. Will this letter suffice?

I tell Sarah that the notarized letter may be good enough, but usually, MEIA wants the child’s parent to sign the CIHR application form, confirming that they want the relative to care for their child. However, in cases where the parent is not available to sign such a form, MEIA may be persuaded to accept a letter or other document which confirms that the parent wants the relative to care for the child. The care-giving relative does not have to have a court order for custody or guardianship.

“How do other benefits, like the child tax benefit, affect CIHR benefits?” Sarah asks. “Are they deducted from the CIHR benefit amount?”

I explain that the Child Tax Benefit, Universal Child Care benefit, and most other benefits paid on behalf of children are not deducted from CIHR benefits. A relative like Sarah who is caring for a child can get the Child Tax Benefit and Universal Child Care benefit, and she should apply for those as soon as possible. There are other benefits that some relatives caring for children may qualify for. For example, if the relative is caring for a child whose parent (or parents) have either passed away, or are receiving CPP disability benefits, then the child may be eligible for CPP benefits. There are CPP benefits for children of disabled CPP contributors, and CPP benefits for surviving children of deceased CPP contributors. CPP benefits are not deducted from CIHR benefits. I tell Sarah that the Legal Services Society (a.k.a. Legal Aid) has a family law website that includes a useful chart with more information about various benefits that may be available to some relatives who care for children. See: Grandparents benefits

Finally, I advise Sarah if her application is refused, she can appeal MEIA’s decision. The first step in an appeal is to file a “Request for Reconsideration” of MEIA’s decision. That must be done within 20 business days of the day the relative was notified of MEIA’s decision. I tell Sarah that if she needs to pursue a Request for Reconsideration, she should call me again so I can discuss that process with her and offer some advice.

And with that I conclude the call.

For your further information, the legislation regarding CIHR benefits does not define what categories of “relative” may be eligible for those benefits. As MEIA has an obligation under the BC Human Rights Code not to discriminate against someone on the basis of their family status, the term “relative” should, in our view, be given a broad interpretation, and certainly includes blood relatives (siblings, cousins, aunts and uncles, etc) and relatives either through marriage or through common law relationships (e.g. step-parents, step-grandparents, step-auntie, etc).

Finally, people who receive income assistance themselves can also get CIHR benefits if they meet all the other criteria for CIHR benefits. The CIHR benefit is not considered to be part of the relative’s “income,” so it is not deducted or clawed back from the relative’s own income assistance cheque. Furthermore, where the child cared for is under the age of three, or the child has a physical or mental condition that precludes the relative from leaving home for the purpose of employment, the relative will not be required to look for work in order to continue getting his or her own income assistance cheque.

LAST UPDATE: ONTARIO DEMAND LETTERS

2008-01-22T16:37:00.000-08:00

Still nothing.

It is nearly a year now, and the Ontario Law Society (“OLS”) has still not made a decision. In the meantime, at least one Ontario lawyer continues to crank out these letters.

The official line from the OLS is that they are still “investigating.” As the facts are perfectly clear and simple, this just boggles the mind.

Since this is our fourth entry on this topic, there will be no further updates regarding the OLS until, or should we say, unless, they reports that they have made a decision.

We have found our experience with the Ontario Law Society very disillusioning.

As they are unable or unwilling to handle complaints within a reasonable period of time, we are working on another option, and will let you know about that once it gets underway.

SHOPLIFTING AND SCARY NOTICES

2007-12-20T16:28:00.000-08:00

From time to time we get calls from people who have been caught shoplifting. Generally, they’ve been caught red-handed by store security, and released a short time later after some paperwork.
More often than not the police did not attend the scene and were informed of the incident after the fact by store security.

Our callers often ask us about a ”Notice Prohibiting Entry” that store security has either gotten them to sign or else just given to them. This form tells the caller that he or she is banned from the store for a period of time (usually a year), and warns that if he or she breaches the ban, “you may be subject to arrest without warrant and charged with an offence and subject to a fine pursuant to the Trespass Act.”

Often store security also serves the person with a “Notice of Intended Legal Action,” which states that the store intends to seek compensation in civil court for various alleged expenses. The notice is followed up by mail with a demand letter. Sometimes this arrives after criminal proceedings have been completed, sometimes not. The letter essentially demands that the caller pay a specific sum of around $500 to compensate the store for “investigative and administrative costs.”

Since most people think of shoplifting as a criminal rather than civil matter, this all comes as a bit of a surprise. What’s the deal with these notices? Is shoplifting a criminal or civil matter?

Technically, it’s both, but these notices and demand letters need not cause undue concern.

As for the “Notice Prohibiting Entry,” the fact is that stores, while generally open to the public, are private spaces, and owners or their agents can indeed ban anyone they want (unless they do so for reasons that violate the B.C. Human Rights Code).
If you try to steal from their stores, they can ban you. The language of the notice, while technically true, is rather overblown. “Subject to arrest without warrant” means that if the person comes back, store security can stop the person again and remove them from the store. As for “you may be charged with an offence and liable to a fine,” the likelihood of this actually happening is practically zero. Such a charge would have to be approved by Crown Counsel, and we’ve never heard of such a case.

Nonetheless, stores are private places, and if you’re banned you should stay away for the stated time.

As for the “Notice of Intended Legal Action” and demand letters, these are rather misleading. Technically, the store can sue a would-be shoplifter, but the amount of money a court would order in the vast majority of cases is so low that it is almost never cost-effective to actually carry out a lawsuit. So in nearly all cases, if you just ignore these letters, nothing happens. It’s also very important to note that payment or non-payment of the amount demanded has no impact on whether or not Crown Counsel will lay a criminal charge, and no impact on what sort of sentence may be imposed. The civil side and the criminal side of the matter operate separately.

In short, don’t panic, but don’t do it again!

CHILD SUPPORT SHENANIGANS

2007-10-16T16:00:00.000-07:00

I can hear the aggravation in her voice, tightening her throat. “How is it fair that I’m breaking my back to bring home the bacon and make a home for the kids and he can just sit around mooching off his new girlfriend?”

Thelma’s common law husband of nine years, Fred, walked out on her and their two school-aged children three months ago, saying he needed to “start over.” Apparently, starting over means moving in with another woman, Daphne, minding her Great Dane, and taking a correspondence course in interior design.

The family wasn’t rich. They rented a bungalow, where Thelma stills lives with the kids. Fred still lives in town, so access doesn’t hasn’t been a problem. But every time she’s tried to raise financial issues, he shuts down, mumbling something about their savings. In fact there are just two RRSP’s with just a couple thousand dollars each. Worse still, he’s gone from full time to part time hours in his taxi-driving job because he’s feels stressed out, and needs more time to devote to his studies

Thelma quickly came to the conclusion that she wasn’t getting anywhere with him, so she started an application for child support in provincial court. Using legal aid’s “Family Law in B.C.” and our handy self- help guides (See: http://www.familylaw.lss.bc.ca/guides), she’s already taken care of filing and service already, and the registry has set a first appearance date for later this month.

What she wants from us is some information on how to argue her case. Surely child support shouldn’t be based on his new level of income?

Indeed not.

The starting point in nearly all child support cases are the tables to the Child Support Guidelines (available at http://canada.justice.gc.ca/en/ps/sup/index.html) The tables specify an amount according to the number of children and the gross annual income of the paying parent. For example, Fred’s gross income for last year was $41,902. According to the table, he’s liable to pay $638 total per month for both kids.

Although Fred will likely argue that he should pay less now that he’s earning less, he is almost certain to fail. The guidelines clearly state that a judge may “impute” income to a parent who is intentionally under-employed or unemployed. In other words, a parent who chooses not to earn money to his or her full potential can simply be deemed to be earning his or her full potential, and the child support payable calculated accordingly.

A judge won’t always impute income to an under-earning parent. For example, a parent may need to reduce employment for genuine health or educational reasons. Those reasons, however, have to be reasonable in the circumstances.

In the case of Thelma and Fred, it seems extremely unlikely that a judge would consider Fred’s voluntary reduction in hours to be reasonable. Simply feeling stressed out, short of a diagnosed psychiatric condition, will not likely convince a judge that reduced hours are legitimate health need. Likewise, his sudden desire to pursue new long-term career objectives, while it may be authentic, does not by itself provide a good reason to reduce his immediate financial responsibilities to his children.

I tell Thelma that she has a strong case to argue that child support should be calculated on the basis of Fred’s full time income, and encourage her to proceed on that basis.

FALL UPDATE: ONTARIO DEMAND LETTERS (HURRY UP AND WAIT)

2007-09-25T10:19:00.000-07:00

As promised, we followed up with the Ontario Law Society about this matter earlier this month. They say they are still investigating. It has now been seven months....

We will continue to follow up with them periodically, and will let you know once there’s any change.

In the meantime, these Ontario lawyers continue to crank out these letters. For more information about how to deal with them, see our previous post at: www.bc-lawline.blogspot.com/2007/04/consumer-alert-demand-letters.html). Anyone receiving such a letter can contact us at (604) 408-2172 or 1-866-577-2525.

Have Your Been Injured in a Accident that was not Your Fault?

2007-09-05T15:05:00.000-07:00

While our primary role at LawLINE is giving legal advice, sometimes it’s more appropriate to give legal information or refer people to other services that are more suited to their needs.

For example, from time to time we get calls from people who have recently been in a motor vehicle or some other type of accident.

We can certainly tell them that the general law in British Columbia is that if you are injured in an accident due to the fault of another person, you can claim compensation for damages you have suffered as a result. Damages can include loss of wages, out of pocket expenses for medication, and compensation for pain and suffering. This is the essence of the law of negligence.

Apart from this, we feel it’s more appropriate to refer these people to the private bar. There are plenty of lawyers out there who do personal injury work. Practically all of them will give a free first meeting to prospective clients.

Also, personal injury lawyers usually work on contingency. That means that the lawyer’s fees are calculated as a percentage of the settlement or award. If the client’s claim does not succeed, the lawyer charges no fee. (However, the client will still usually be responsible for the lawyer’s expenses, such as court filing fees, postage, etc.)

Contingency fees are usually staggered so that if the case settles early, the percentage will be less than if the matter has to go through a trial. The maximum percentage is 33 1/3% for a motor vehicle related case, and 40% for personal injury and wrongful death cases not relating to motor vehicles. The market is somewhat competitive, so it may be a good idea to shop around before making a decision.

For more information about lawyers fees, check out this page from the B.C. Law Society’s website:

http://www.lawsociety.bc.ca/public/lawyers_fees/types_fees.html.

To find a personal injury lawyer, ask family or friends, or consult the yellow pages.

UPDATE: ONTARIO DEMAND LETTERS

2007-07-16T17:14:00.000-07:00

Back in April, we posted an item about some Ontario lawyers who are sending demand letters threatening Ontario legal proceedings in consumer disputes that have no Ontario connection. (See www.bc-lawline.blogspot.com/2007/04/consumer-alert-demand-letters.html).

In our view, these letters were inappropriate and raised serious ethical concerns, so we filed a formal complaint with the Law Society of Ontario (or Law Society of Upper Canada as they are officially known).

In our original post on this topic, we noted Society had promised to get back to us by mid June. In fact, we have contacted them several times in June and July by phone, and they now say they will not have a report before the Fall.

No doubt the people working in the complaints department are hard-working, competent people, but if this is the best they can do, they must be ridiculously understaffed.

We’ll follow up in September, and let you know. In the meantime, anyone receiving such a letter can contact us at (604) 408-2172 or 1-866-577-2525.

YOU CANNOT INHERIT A DEBT

2007-06-15T09:08:00.000-07:00

From time to time we get calls from people whose spouses have recently passed away and left a whole lot of debts. It’s an unfortunate situation, as the caller is placed under unnecessary financial worries at a time when he or she is still coming to terms with to deal with his or her bereavement. More often than not the deceased has left no will, the assets are meager, and the caller is very worried about his or her responsibility for the debts.

When a person passes away, everything they owned becomes their “estate.” This includes money, bank accounts, personal and household effects, real estate, and anything else a person may own. The estate is managed by personal representative of the deceased, called an “executor” if appointed by a will, or an “administrator” if not. This process is called “probate.” The personal representative must use due diligence to determine what assets and liabilities the estate has, and he or she must use the assets to pay off the liabilities, including funeral costs, taxes and other debts. After liabilities are paid off, the remaining assets must be distributed to the beneficiaries as set out in the will, or if there is no will, then as set out in the Estate Administration Act.

However, if the liabilities are equal to or greater that the assets of the estate, the creditors just have to write off the balance. Provided that the personal representative has exercised due diligence in carrying out his or her duties, he or she has no personal liability for the debt, unless it was a debt held jointly by the deceased and the representative.

For more information and resources on probate, check out LSS’s LawLINK website at:

http://www.lawlink.bc.ca/links/wills_and_trusts.asp

CONSUMER ALERT! DEMAND LETTERS THREATENING LEGAL ACTION IN ONTARIO!

2007-04-24T09:27:00.000-07:00

Over the past six months or so, several of us at the LawLINE have heard from people who have received letters from Ontario lawyers threatening to sue them in the small claims court of Ontario.

Typically, the caller has an outstanding account of a few thousand dollars with a cell phone company or bank. Sometimes the caller has a service dispute with the company, sometimes not. The company then refers the file to an Ontario lawyer to write a “demand letter” that states that unless the caller pays the claimed amount within ten days, he or she may be sued in Ontario Small Claims Court. Just for good measure, the letter attaches an unfiled copy “Plaintiff Claim” for filing in that Court.

Our callers are naturally quite distressed when they call us about these letters. How can they defend themselves in an Ontarian law suit when they live in B.C.? Obviously, that would be wildly impractical! Do they have no practical choice but to try to pay up? That would be very galling, especially when they have a legitimate dispute with the company! Even if they don’t have a service dispute, shouldn’t they have a realistic opportunity to negotiate payments terms?

We tell our callers that, despite appearances, it is very unlikely that they will have to defend themselves in Ontario.

In order for a court in Ontario to have jurisdiction to give judgment on a matter, the case must have some connection to Ontario. In the cases we are seeing the callers are from B.C., the companies are operating in B.C., and the services are provided in B.C. Therefore, in the absence of any contractual term to the contrary, only the courts of B.C. have jurisdiction, in our opinion. So we tell the clients, after checking the terms of their contract, not to worry because it’s very unlikely that the “Plaintiff’s Claim” will be filed because the Ontario lawyers must know that the Ontario courts don’t really have jurisdiction.

We do also tell them to contact us promptly if they receive a filed Plaintiff’s Claim, as they will need to defend the action. (Never, never just ignore court papers not matter how unfounded you think the claim is! That could result in a default order.) But so far, no one has phoned us to say that they have actually been sued in Ontario.

These cases raise an interesting point of ethics. Is it ethical for these lawyers to threaten to file a law suit in a court they know (or ought to know) almost certainly has no jurisdiction to hear the case? Are lawyers allowed to do this?

A formal complaint regarding this tactic has been made to The Law Society of Ontario. We will let you know it goes as soon as we find out.

Stay tuned! The Law Society has promised to get back to us by mid-June.

Family Maintenance Orders and Multiple Jurisdictions

2007-04-05T09:25:00.000-07:00

Canada’s huge geography and federal system of laws can make getting and changing family support orders rather challenging. But as “Jane” discovered in a recent call to us, things have gotten a little easier since the introduction of the Interjurisdictional Support Orders Act in 2003.

Jane split up with her common law partner, Frank about three years ago. They were living in Edmonton at the time with their three children. In their separation agreement, Jane and Frank decided that the children would live primarily with Jane in the Okanagan, where Jane’s extended family lives, and that Frank would have generous access with the kids when he was able to come over for a visit from Alberta where he continued to live. They also agreed that Frank would pay child support of $716 per month, based on his gross annual income of $35,000. They filed the separation agreement in the Edmonton registry of the Provincial Court of Alberta.

Lately Jane has been concerned about the amount of child support because Frank recently got a new, and better, job, working in the oil patch in Fort McMurray. She has asked him how much his new income is, but he won’t tell her. She reckons this means he earns a lot more at this new job, and she wants increased child support payments so the children also benefit.

But how does she go about achieving this? She can’t afford to travel to Edmonton for court; she can’t afford to hire a lawyer to represent her in Alberta; and she figures there is no way that Frank would voluntarily increase payments. Can she just apply for a child support order in B.C.? Or does Jane has no choice but to travel to Edmonton for court?

I tell Jane that she can’t apply for a new child support order in BC. This is because there is a filed separation agreement dealing with child support in the Alberta courts, and a filed separation agreement has essentially the same effect as a court Order.

Instead, Jane will have to apply to vary the current Alberta court order. There are two ways to do that. One option is to apply directly to the Alberta Provincial Court to vary the current Order. This would require Jane to travel to Edmonton for court, or to have an Alberta lawyer represent her, and possible both. As we have already noted, this is not a practical option. Fortunately, there is a second option. She can make an application to vary the Alberta court order under the Interjurisdictional Support Orders Act noted above and affectionately known as “ISO” (pronounced “ice-o”). She can make that application without having to travel outside B.C. or hiring a lawyer in Alberta.

“Okay,” says Jane, “so how does ISO work?”

I explain that BC has reciprocal agreements regarding child and spousal support orders with all the Canadian provinces and territories, and with several foreign countries, ranging from the Australia to Zimbabwe. B.C. and each of these reciprocating jurisdictions have agreed to recognize each other’s support orders and agreements. (A complete list of these jurisdictions are listed in section 6 of the Interjurisdictional Support Orders Regulation (posted at www.qp.gov.bc.ca/statreg/reg/I/15_2003.htm#section6.) A B.C. resident can use ISO to apply for a child or spousal support order against someone who lives in another reciprocating jurisdiction, or to vary a support order that was previously made in a reciprocating jurisdiction.

To begin the process the B.C. resident must fill out the appropriate forms and sent them to the Reciprocals Office in Vancouver, which in turn forwards the application to the appropriate court in the reciprocating jurisdiction. That court will consider the B.C. resident’s written evidence, and the other party will be required to provide evidence, especially regarding his or her income, so that the judge can decide whether or not to grant or vary a support order.

To get the forms along with step-by–step instructions, Jane should go to the Attorney General’s ISO website at www.isoforms.bc.ca/. It has everything she needs to get her ISO application started. She should begin by using the “forms select” section of the website to figure out which ISO forms she needs to fill out. The website also has detailed instructions on how to fill out each form. Once she completes the forms, she must send to the Reciprocal Office mentioned above.

Completing an ISO application does require a fair bit of paperwork and some knowledge of the law, so I suggest to Jane that she have a lawyer review her ISO application before she sends it to the Reciprocals Office, so the lawyer can make sure her application is completed fully and correctly. Provincial Court Family Duty Counsel (see www.lss.bc.ca/legal_aid/legal_advice.asp#PFDC ) may be able to review Jane’s application for free. Or, she could see a lawyer at a pro bono clinic.

How long will Jane have to wait before a judge rules on her application? That’s hard to say, but generally a person who applies under ISO will have to wait many months for a decision. If a person has applied under ISO and not received a decision after many months, I suggest that they contact their local Family Justice Counsellor’s office (see www.ag.gov.bc.ca/family-justice/help/counsellors/index.htm Family Justice Counsellors can ask the BC government’s “Maintenance Enforcement and Locate Service” to track down the status of an ISO application, and try to move the matter along, even when the application is in another province or country.

Jane thanks me for my assistance, and says she’s glad that she called.

Immigration Sponsorship Breakdown

2007-01-24T14:40:00.000-08:00

Sponsoring a Relative to Come to Canada

It is common knowledge that people from all over the world immigrate to Canada. Many come to Canada as part of the “family class” of immigrants through a process called sponsorship. What is perhaps less well understood are the strings that are attached to sponsoring a relative to come to Canada.

First of all, what does ‘sponsoring a relative’ mean?

Canadian immigration law allows Canadian citizens and permanent residents living in Canada, who are 18 years or older to sponsor close relatives or family members to become permanent residents of Canada. So, the Canadian citizen or permanent resident applies to sponsor the relative as a member of the “family class”. If all the criteria are met, (the sponsor qualifies and the sponsored person’s application for permanent residence is successful) the application will be approved and the relative is issued a permanent resident visa.

There are financial and legal responsibilities that go along with sponsorship.

Sponsors must sign a document called an undertaking. In the undertaking, the sponsor promises the Canadian government that they will support the sponsored person (and any accompanying family members such as dependent children) for a period of three to 10 years. This is to ensure that the newcomers will not have to apply for social assistance in Canada. The sponsor must also sign a sponsorship agreement with the person(s) being sponsored which confirms the sponsor’s commitment and, in turn, outlines the commitment of the sponsored person(s) to make every effort to be self-supporting. In many cases, the sponsor and the newcomer are able to meet these financial and legal obligations. However, in some cases, the sponsorship breaks down. Sponsorship breakdown occurs when the sponsor cannot or will not provide for all of the sponsored persons basic needs (such as food, housing and medical care), the sponsored person is not able to financially support themselves and/or their dependents, and the sponsored person applies for and receives welfare benefits.

Here’s an example of a typical call to the LawLINE:

I pick up the next call, and a woman named Jasvinder tells me that she’s really worried because she and her husband Ranjit recently split up and she is scared and not sure what to do next. She tells me that she and Ranjit married about 1.5 year ago in India, and shortly afterwards he sponsored her to come to BC. The sponsorship application went through, she got her permanent resident visa and then she came to BC about 10 months ago. She has been living with Ranjit’s family since she got here.

She tells me she was excited about coming to BC but there has been a lot to adjust to: a new country, culture, marriage, and extended family. This is her first time away from her family and friends and she has never been to Canada before.

She tells me that when she first arrived, things were fine, she and her new husband seemed to be getting along well and her mother-in-law seemed to be accepting her.

She had hoped to get a teaching job with her teaching degree from India but soon found out this wasn’t going to be as easy as she thought. Instead, she got a part time job at a convenience store, for the moment, and was starting to settle in to her new family and country.

But after being in Canada for about 8 months, Jasvinder tells me that Ranjit’s attitude towards her has changed a lot. A few weeks after starting her job, Ranjit told her that she had to give him all the money from her part time job. When she refused to give him all the money, he told her she wasn’t allowed to work anymore. Under pressure from Ranjit and his family she quit her part time job about a month ago.

After the blowout about the job, Ranjit told her that she should focus on looking after the household chores and should not leave the house without his permission. He told her that if she cannot live with these rules he will send her back to India. Jasvinder starts to cry - she did not expect this change.

Ranjit had seemed like a caring and kind man when she met him at home in India, and she had been excited about starting a new life with he and his family in Canada. Her family had also thought he would be a good match. But, she explains that she is very unhappy living under his rules and he has even threatened her with his fist a couple of times.

She tells me that she wants to leave Ranjit, but at the same time she badly wants to stay in Canada. Doing both seems impossible though - since she has no way to support herself right now. Can she apply for welfare? She knows that Ranjit signed some immigration papers saying she wasn’t allowed to get welfare. She tells me that she doesn’t want welfare but she doesn’t see any other choice right now. If she tries to get welfare,can Ranjit get her deported back to India?

You’re right that Ranjit would have signed some important papers, I tell her. As part of the sponsorship process, a sponsor must sign a document called an undertaking where they promise to support the relative or family member (and any accompanying family members - i.e. dependent children) for a period of three to 10 years, depending on the family member’s age and relationship to the sponsor.

Jasvinder said she thinks that ‘he signed for her’ for 3 years - and that means there is just over 2 years left.

I explain that the undertaking and sponsorship agreement are binding contracts for the period of time that they apply- since you are the sponsor’s spouse- 3 years from the date you became a permanent resident. However, there are a few things that are important for her to know:

1. If she decides to leave her husband/sponsor she is still a permanent resident of Canada;

2. If she decides to leave Ranjit and cannot pay for basic things like groceries and rent, she can apply for welfare at her local office of the Ministry of Employment and Income Assistance. She will not lose their permanent resident status by applying for welfare. I suggest that before applying she contact a local immigrant services organization, ( For example: Mosaic: www.mosaicbc.com) and ask to speak to an advocate who she can explain her situation to and get help with her welfare application; and

3. If she receives welfare there will be consequences for Ranjit, because of the undertaking. As your sponsor, Ranjit will be responsible to pay back the money she receives from the Ministry of Employment and Income Assistance. So down the road he may get stuck with a fairly big bill from the BC government. Also, a sponsor cannot sponsor anyone else to come to Canada as long as they owe money to the government for defaulting on the undertaking.

I suggest that she talk to an advocate at Mosaic as a first step, and for more information she should go to a Legal aid website called LawLINK:

http://www.lawlink.bc.ca/links/immigration_and_refugee.asp.

Internet Fraud

2006-12-19T14:45:00.000-08:00

You know what they say, if a deal sounds too good to be true, it probably is. Frankly, I think “probably” is an understatement.

IF IT SOUNDS TOO GOOD TO BE TRUE, IT ALMOST DEFINITELY IS!

There’s a heck of a lot of scammers out there. Police forces have whole task groups devoted to combating those who use the phone and the internet to rip people off, and I get to see some of the emotional and financial wreckage these creeps leave behind.

One scam making the rounds lately is an internet work-at-home “opportunity” that preys upon unsophisticated job-seekers looking to make some extra money.

Here’s how it works. The scammer uses the internet to find the victim through resume-posting websites. He then sends the victim an email posing as a prospective employer. Often he uses the name of a real company (without their knowledge, of course). He says that he represents a foreign company that needs a local representative to process cheque payments from the victim’s area, and forward the proceeds to the company’s home country. The victim is told that he or she gets to keep a percentage of the payments, usually five or ten percent.

Five or ten percent of thousands of dollars to cash cheques? Sounds too good to be true, doesn’t it?

The victim receives what appears to be a valid cashier’s cheque, maybe about $15,000. In accordance with the scammer’s instructions, the victim deposits it in his or her bank account, keeps 10% for him or herself, and transfers 90% percent of it by a wire transfer service, such as Western Union, to location chosen by the scammer.

So far so good, but then a few days later, the victim gets a call from his or her bank, who has by now figured out that the cheque is a forgery. The bank has reduced the victim’s account balance to zero in order to recover its losses. Not only that, but both the bank and the police want to ask some questions about how and why he or she passed a forged cheque.

Awkward, eh? Generally, the victim can convince the bank and the police that he or she wasn’t in on the scam, but even so, the bank may garnish any account the victim has with them, and may also sue to recover the balance.

Most people could probably spot this scam, not because they know anything about international finance (I certainly don’t), but simply by stopping for a minute and asking themselves: does it really make sense that a legitimate international business would pay me, a person they have never met, thousands of dollars just to cash a few cheques?

Unfortunately, a scammer usually has a way with words and gets some people so excited about the money that they forget about common sense. So just remember:

IF IT SOUNDS TOO GOOD TO BE TRUE, IT ALMOST DEFINITELY IS!

And if someone approaches you with a suspicious scheme, check it out with the police before you get involved. You can contact your local police department, or “Phonebusters,” a Canada-wide law enforcement task force dedicated to combating internet and telephone fraud. Their toll-free number is 1-888-495-8501. You can also get in touch with them through their website at: http://www.phonebusters.com, which also has much more information on how to stop protect yourself and others from fraudulent schemes like this one.

Legal Aid Expands Coverage in Family Cases

2006-11-15T16:37:00.000-08:00

My first call of the day is from 33 year-old woman named Beverly who lives in a small northern community.

Two weeks ago, Beverly left her husband, Kevin, after ten years of marriage, and now lives in a rented apartment. They do not have any children. While Kevin was not physically or verbally abusive of her, Beverly is worried that he may try to take financial advantage of her.
She has two main concerns. First, the two of them bought a house during their marriage, but the legal title to the house is Kevin’s name alone. Beverly has overheard him talking about selling the house several times, and she has heard rumours in town that he’s planning to do so very soon. She is worried that he will sell the house without her knowledge and just take off with the money. She’s also concerned that Kevin is moving money around between bank accounts, trying to hide money and investments he had, to make it look like there is less property to divide between the two of them.

What can she do to protect herself?

As for the house, I confirm that since she is not “on title” to the house, Kevin could sell the property without her knowledge or consent. However, there is a straightforward, and very affordable, step that Beverly can take to prevent this from happening, and she should do it as soon as possible.

Beverly can file an application under section 2 of the Land (Spousal Protection) Act. (The full text of this act is available at http://www.qp.gov.bc.ca/statreg/stat/L/96246_01.htm.) The application is made to the Land Title Office, not to a court. She does not need to hire a lawyer to make this application, but she will need to meet briefly with a lawyer, notary or commissioner of oaths to swear an affidavit. Once the application is filed, it will act as a sort of lien against the house, and prevent Kevin from selling the house without her permission.

I explain to Beverly that she will need to fill out two forms, both of which are available online. I refer Beverly to the Forms Regulation under the Land (Spousal Protection) Act, available at http://www.qp.gov.bc.ca/statreg/reg/L/85_97.htm She will need to fill out an application in Form B, and an affidavit in Form A, and file them with the Land Title Office. In these forms she will need to provide the full legal description of the family home. She can get this from her local city hall by giving the street address to the staff there, who can then give her the official legal description. Also, Beverly should attach a copy of her marriage certificate to her form B application, if possible.

Once the forms are completed, Beverly can file them directly with the local Land Title Office or the local Government Agent’s office, or she can hire a land title search agent to file the documents for her. There is a filing fee payable to the Land Title Office, but it’s only $2.50.

As for Beverly’s concern about Kevin trying to hide money and other assets, I explain that the B.C. Supreme Court can make orders restraining him from doing that, but the Provincial Court cannot make orders concerning property in family cases.

Since Beverly lives on a low income, I suggest that she consider applying for legal aid. As of November 1, 2006, the Legal Services Society, a.k.a. legal aid, made some changes to its family law coverage policy. These changes allow legal aid staff more discretion to refer someone to a lawyer in cases where there are no concerns with domestic violence, abduction or child safety. If Beverly is financially eligible for a legal aid assistance, then her application will be reviewed to see if her case has enough priority to be referred to a lawyer.

I explain that for legal aid to help with property division issues, there must be at least $50 000 of equity in the family assets. If there is, and there is a clear threat that Kevin may hide or sell assets, legal aid may agree to pay for a lawyer to apply to Supreme Court on her behalf for a court order preventing Kevin from selling or hiding assets. Legal aid may also authorize that lawyer to take other steps on her behalf.

Also, legal aid may issue Beverly a “dispute resolution referral.” To decide whether Beverly is eligible for such a referral, legal aid would consider several factors, including whether she is able to resolve her legal problem using other resources such as family duty counsel, whether there would be a significant injustice to her if legal assistance were not available to her, and whether resolving her legal problem would make a significant difference to her ability to be self-supporting. Legal aid would also consider whether she has any particular barriers to trying to resolve her legal problem without a lawyer’s help. Such barriers could include language or cultural barriers or a physical or mental health condition that affect her capacity to resolve her legal problem without a lawyer.

If legal aid does issue Beverly a dispute resolution referral, it will pay a lawyer to try to mediate or negotiate with Kevin to see if the ex-couple can to an agreement on how to divide the property. If an agreement can’t be reached, the lawyer can also help Beverly by preparing court documents for filing in the Supreme Court, advising her about her options, and attending a judicial case conference with her, if needed. Furthermore, if the lawyer needs to appear in court to resolve her issues, the lawyer can ask legal aid if they will approve that service as well.

Beverly thanks me for my help and we agree that she can call us again if she has any more questions in the future.

Seize or Sue

2006-10-26T16:21:00.001-07:00

I pause for a moment and then type the final sentence of my letter. “Accordingly, we consider this matter concluded, and trust that Ms. Wong will not be contacted again.”

That’s lawyer talk for “get lost.”

Yesterday Linda Wong contacted us because some lawyer, from Ontario of all places, had sent her a letter about a car loan. It seems that in happier times Linda and her husband, Randy, went to a car dealership in Victoria and purchased a big shiny SUV which they could just barely afford, thanks to vendor financing. They signed a “Conditional Sales Agreement” which was filed against the vehicle in the provincial government’s Personal Property Registry.

Then, about six months ago Linda and Randy separated, and found that they could no longer afford the payments. Linda took the bull by the horns and contacted the dealership to explain the situation, and by agreement the dealership repossessed the vehicle. Linda and Randy weren’t happy about it, but they were nonetheless relieved to the matter put behind them.

So or they thought. A few days ago, Linda got a letter from “Mr. Ronald Jaggers, Esq.,” a lawyer from Toronto, telling her that after the SUV was resold and various fees and penalties were taken into account, there was $15,000 still owing on the purchase agreement. Mr. Jaggers’ letter went on to threaten to file a lawsuit unless “satisfactory arrangements for payment” were made within 14 days.

This sent Linda into overdrive. She had been assured by the dealership that everything was resolved and she and Randy could walk away from the deal. Intimidated by the fact that there was a lawyer now involved, she figured she’d better get some legal advice before responding to the letter, so she went to the legal aid website where she found our number.

In our phone conversation, I confirmed with Linda that this was indeed a purchase agreement, not a leasing arrangement, and asked her to fax us a copy of it, along with a copy of Mr. Jaggers’ letter. After reviewing these, I phoned her back, and explained to her that the part of the problem here may be the fact that Mr. Jaggers does not understand BC law.

In BC, a seller who repossesses a vehicle because the buyer doesn’t make the payments cannot also sue the buyer for any balance owing under the purchase agreement. The seller can either repossess the vehicle or let the purchaser keep the vehicle and sue him or her for payment. In other words, the seller must “seize or sue.” Maybe in Ontario things are different. But the dealership took the vehicle, and that’s the end of the matter.

Linda gratefully accepted my offer to write to Mr. Jaggers to explain all this, so I did, and that should be the end of the matter.

"We're Being Evicted!"

2006-10-12T16:40:00.000-07:00

“We’re being evicted!” Olga exclaims indignantly.

Sometimes they get right to the point. I quickly get a thumbnail sketch of the caller’s situation, both the background and the current crisis point she’s facing.

About five years ago, Olga and her husband, Nigel, moved into their cozy, one-bedroom apartment in the West End of Vancouver. At first things were pretty good. It’s a nice quiet building, and they made friends with many of the neighbours. The live-in caretaker, Dick, seemed a little odd, but pleasant enough.

Dick’s attitude towards them seemed to change, though, soon after their three-month old son, Aidan, was born. Since then Dick has been hassling them about Aidan’s crying, which is supposedly bothering him and some of the other tenants. This puzzled them because Aidan is a good-tempered boy, and no one else has ever raised such a concern with them. Dick commented that perhaps they should think about moving to a more “family-oriented place,” which also puzzled them as there are other families with children in the building.

Then earlier today while Nigel was at work, Dick came to the door and handed her an eviction notice. Strangely, this document, entitled “One Month Notice to End Tenancy for Cause,” doesn’t mention anything about crying or noise. Instead it states the cause for eviction as “tenant has allowed an unreasonable number of occupants in the suite.” “Your lease says just two people,” said Dick over his shoulder as he walked away.

Olga hasn’t even been able to talk to Nigel yet. She saw that the Notice gave a website address for Residential Tenancy Office (www.rto.gov.bc.ca), and had a look at the site. She understands that she can dispute the eviction by filing an “Application for Dispute Resolution” no later than ten days from now. But she wonders if there is any point in doing so. She checked the lease, and it does say that the number of occupants is “under no circumstances to exceed two.”

She absolutely should dispute the eviction notice, I say.

Just because the lease stipulates a two-person limit doesn’t mean that having a higher number is necessarily unreasonable and therefore grounds for eviction. In the case of Olga and her family, having two adults and one baby in a one bedroom apartment is probably fine. We’re aware of cases where tenants have succeeded on having eviction notices cancelled in similar circumstances.
Also, I add, the family may want to consider filing a complaint under the B.C. Human Rights Code, as it is illegal for a landlord (or a landlord’s agent) to discriminate against a tenant on the basis of family status. A person must file his or her complaint within six months of the alleged contravention, and can ask for various remedies, including a cease and desist order and monetary compensation.

This is all a lot to absorb, she says.

Mainly, she’s concerned about not being evicted; she’s not sure if she wants to get into something like a lawsuit. She’ll talk it over with Nigel this evening. Would it be possible for her to call me back? Will she have to wait in the phone queue again, or can she get my direct line?

We don’t give out direct locals, but I arrange to call her back tomorrow to see where they want to go with the human rights issue. In the meantime, I remind her of the ten day deadline for filing the application to dispute the eviction.

Disability Trust Fund

2006-09-28T16:06:00.000-07:00

Frank’s going to be getting a tidy sum of cash soon – or will he?

He received a letter from a lawyer in Ontario informing him that in a few months he will receive a cheque for about $20,000 from the estate of his old Uncle Donald, who passed away earlier this year.

That’s more money than Frank’s ever had at one time, so naturally he’s pretty excited. But he’s also a little worried.

“You see,” he says, “I’m on disability income assistance, and my financial worker says that when I get the money I’ll be bumped off assistance because I’ll have too much in assets to qualify.”

Since Frank has chronic fatigue syndrome and is legally blind, his employment prospects are extremely limited, so he would have to use the inheritance money to live on. Assuming that he lives on the same budget as he does now, the money will be gone in about two years. Then he’ll have to apply to go on income assistance again, according to his financial worker. When Frank thinks about it, he figures the net result is the same as if he never got an inheritance at all. “It’s like the government just takes the money! Uncle Donald never would have wanted that!”

Frank called the estate lawyer, who couldn’t help him, but suggested that he call legal aid here in B.C. Frank called Legal Aid’s general number, and the receptionist gave him the LawLINE number.

So, is his financial worker right? Can they bump him off income assistance?

“Yes,” I say, “they can and they will. But there may be a way to avoid that and still get the benefit of your inheritance. Tell me, Frank, are you getting benefits under the ‘persons with disabilities’ class, or the lower, ‘persons with persistent multiple barriers’ class?”

“Persons with disabilities,” he says.

“In that case,” I say “I have a solution for you. It’s called a ‘disability trust.’”

I explain that a “trust” is a legal arrangement in which legal control of money or other property is given to one or more “trustees” who must use the money or property for purposes that benefit one or more ”beneficiaries.” Frank can set up a trust with the inheritance money, which then can be used for certain education, medical and care expenses, and various other things that promote his independence. All this while still receiving monthly income assistance.

However, I caution him, the rules and procedures that must be followed to set up and run a trust are too complicated for me to explain over the phone. I recommend that he see a lawyer that specializes in trusts. How can he afford to hire a lawyer? Simple. The legal fees can come out of the inheritance money.

To find a lawyer, he can ask family and friends for recommendations, check the phone book, or use the Canadian Bar Association’s lawyer referral service. To use the referral service, he simply contacts them at a toll-free number, tells them he wants to see a trusts lawyer, and they will give him the name and contact information for one or more trust lawyers in his area with whom he can make an appointment. The charge is $25 for a half an hour meeting. At the end of the meeting, he can hire the lawyer or not, as he chooses.

Finally, I advise him to get started on this right away so that the disability trust is ready when the inheritance money comes, and there is no interruption of his income assistance payments.

Property Division After Separation

2006-09-14T13:38:00.000-07:00

“Good afternoon, this is LawLINE. My name is Ted; I’m a Law LINE lawyer. Who’s calling, please?”

It’s a woman with an accent I don’t recognize. She introduces herself as “Aysi”, and she’s originally from a country in the Middle East. She has some questions about getting separated from her husband. She is articulate, but has no understanding of how to start the separation process and what the laws are in Canada regarding such matters.

They have been married twelve years, and have a five-year old child. She did not work outside the home, but as a step to independence from a marriage that was not working, she recently did some training and took steps to get a part-time job in office administration.

Aysi is especially interested in property division on separation. The family home, a two bedroom condo, is in her husband’s name solely, and her understanding is that if she leaves her husband, she will get nothing.

Not true, I tell her.

As she and her husband are legally married, the law states that each of them is presumed to have a one-half interest in every family asset, regardless of who is the registered owner. Furthermore, if she starts a divorce lawsuit, she could obtain a court order to give her temporarily the exclusive right to occupy the house with the children.

In the meantime, as she is not “on title,” she should consider protecting her interest in the home by filing a lien under the Land Spouse Protection Act.

We go on to discuss the potential role of women’s centres in helping her plan to separate and be independent. She is very relieved to understand her rights better and have a community contact at a women’s centre where she could meet other women who can help her plan her future.

Impaired Driving Charge and Driving Prohibtion

2006-08-31T13:41:00.000-07:00

It’s Monday morning. Across the street a flag atop a neighboring office tower rolls languidly in the breeze. I log into our phone system.

The first caller is “Bob,” and it seems he got into a “situation” over the weekend. He went out to the local pub with a few buddies Saturday for a few brews. After last call, they decided that since he drank the least of all of them, he should be the one to drive everybody home.

This plan was working well until they got about three blocks from the pub. Long story short, he got pulled over by the police, and was taken to the station for a breathalyzer test. His readings were 0.12 and 0.14. The officer gave him a 90 day administrative driving prohibition and a Promise to Appear in court about one month from now.

He is mainly concerned about losing his license. His job doesn’t involve driving, but he lives in a small town area with no bus service, so it’s very awkward not to have a license. He’s not sure if he can afford a lawyer or if he stands a chance anyway. Can he get a prohibition that would still allow him to drive to and from work? What kind of penalty is he looking at if he pleads guilty? He has a clean driving record and no criminal convictions.

I inform him that the minimum penalty in B.C. is a $600 fine and a one-year driving prohibition. Unfortunately for him, there is no way to get any exceptions to the driving prohibition, whether for work or other purposes. If he is sentenced while the administrative prohibition is still in effect, the two prohibitions will overlap.

What are his chances of beating the charge? That’s not a question we can answer through this phone service. He would need to meet with a lawyer, review the fact with him or her, and inquire about fees. Only then can he do a cost / risk analysis. He can shop around a bit, as fees do vary. Since there is no realistic chance that he is facing going to jail, he would not qualify for having a lawyer paid for by Legal Aid, even if he did qualify financially.

If he doesn’t have a lawyer by the time of the court date, he should have Duty Counsel help him. Duty Counsel are lawyers who hired by Legal Aid to attend court to help people who don’t have their own lawyers. They can’t do trials for you, but they can appear with you at procedural appearances, review your case with you, give general advice, and arrange guilty pleas and appear with you on a sentencing.

As for the administrative prohibition, he is aware that he can apply for a review and possibly get it set aside. He must make his application within seven days from the date that the prohibition was issued. The grounds for review are very limited. For further details, I direct him to a fact sheet published on the website of the Office of the Superintendent of Motor Vehicles. Some lawyers handle these reviews for a fixed fee.

Bob thanks me, somewhat glumly, and we say good-bye.

Family Justice Counselors

2006-08-17T13:44:00.000-07:00

It’s Joni calling again. I spoke to her a few weeks ago about a debt collection matter. That worked out fine, she says. She’s not getting hassled anymore about that, but now she has a new problem.

It seems that she and her former common law partner, Bruno, are not seeing eye to eye about their daughter, Roxanna, age eleven. Since they broke up about three months ago, Roxanna has been living with Joni, and Bruno has been having Roxanna over to his place every other weekend. Apparently, Bruno feels this should be increased to every weekend, since Joni has her all week. Joni thinks this is ridiculous, since during the week Joni’s at work and Roxanna’s in school. In the meantime, Bruno has been paying $250 per month child maintenance, though he did miss one month.

As it seems that Joni and Bruno can talk to each other, though they have their differences, I recommend that they take the Parenting After Separation course offered for free by the family justice department of the Ministry of the Attorney General. It’s a three-hour information session for separated parents who are dealing with child custody, guardianship, access and support issues. The idea is help parents make rational and informed decisions based on the best interests of their children.

I also recommend that they meet with a Family Justice Counselor. Family Justice Counselors are accredited mediators, and one of the things they do is to help separated parents come to agreements on custody, guardianship, access and support issues. Such agreements are legally binding and can be filed with the courts.

If they can’t work out an agreement, the other option is going to court. Hopefully this won’t be necessary, but if it starts to look like it is, she can give us a call back.

In the meantime I will mail her a booklet called “Living Common Law,” which has a section dealing with the legal issues when breaking up.

I also note that in addition to child support, she could claim spousal support. She is quite adamant that she does not want this from him, but just in case, I point out that if she changes her mind, she must file a court action within one year of the date they stopped living together.

That seems to do it for now. She thanks me for my help, and I tell her she’s very welcome.

Unpaid Wages and Severance Pay

2006-08-03T13:45:00.000-07:00

“Punjabi, please,” says the next caller.

I put him on hold as I arrange for an interpreter to join us by conference call. After getting the interpreter’s name and ID number, I confirm with her that the conversation is strictly confidential and protected by lawyer / client confidentiality. Then I complete the three-way connection, and the interpreter and the caller introduce each other.

Rupinder was laid off from his job with a restaurant where he had been working as a dishwasher for five months. It seems that business was slow, and the owner needed to trim costs. Rupinder wasn’t totally surprised, but he did not receive any advance notice.

That’s life, he figures, but he is concerned that he hasn’t been paid for the work he’s done since his last regular paycheque. Does he have to go to court? Also, he is wondering if he is eligible for EI.

As for E.I., I tell him he probably does qualify and should go ahead and apply. He has his Record of Employment (“R.O.E.”), which is good, because the E.I. people will need to get a copy of it. I also point out that E.I. does not pay any compensation for the first two weeks of a person’s unemployment.

As for his unpaid wages, although Rupinder could pursue a claim in court for unpaid wages and severance pay, it would probably not be worthwhile to pursue this option, since his potential claim is not that big, due to his short period of service and low wage rate.

Instead, it would be far more practical for him to enforce his rights under the Employment Standards Act, which states that in B.C., employees have must be paid all outstanding wages within 48 hours of being let go, including vacation pay. Also, the Act states that “wages” includes severance pay. Employees who have worked for an employer between three months to a year must be paid an extra week’s wages as severance pay.

It’s possible that the employer intends to pay him all of this at the end of the next pay period. However, if he isn’t paid or doesn’t want to wait, he will need to get a “Self-Help kit” from the Employment Standards Branch, the government agency responsible for enforcing the Act. He should fill out the kit and deliver the demand part of it to his employer. If he does not get paid within 15 days of delivery, he can then file a complaint with the Branch.

He can get the Self-Help Kit and the complaint form from the Branch’s website or one of their offices. If he needs help completing it, we can help, or he can contact MOSIAC, a non-profit immigrant assistance society.

If the matter isn’t settled after 15 days of delivering the demand for payment, he should contact us or MOSAIC for help with taking the next step of filing a complaint with the Branch.

Credit Card Collection Blues

2006-07-20T10:49:00.000-07:00

The voice on the line is that of a young woman, and a bit shaky. She’s clearly relieved to talk to someone, and her story tumbles out in a jumble. She’s being harassed by a collections agency. After she says her piece, I go through the facts with her methodically, and the full picture unfolds.

Her name is Joni, and until about three months ago, she was living with a guy in a “common law” relationship. He had bought furniture for the apartment using his credit card. This account was in his name solely; she was not an additional card holder. Money was tight and when they split up, he took about half of the furniture. Apparently, he let his credit card account go delinquent, and for the last several weeks, she’s been getting several phone calls a day from a “very mean and ignorant” collections agent.

She is particularly concerned because this agent says that he could have her furniture repossessed and garnish her paycheque. He says it’s as easy as filing out a form.

I tell Joni she’s not alone, and I have good news for her.

Firstly, as she was not on the credit card account, she has no responsibility for any charges on the account, even if she has some of the items purchased on it.

Secondly, the only way the credit card company could touch her personal property or wages would be to be to serve her with a lawsuit, proceed successfully to judgment, and get a court order authorizing the seizure. As she has no responsibility for the debt, there is no reasonable likelihood of this happening.

That’s a relief, but what about this jerk of a collections agent calling her all the time? I explain that she can simply deliver a letter by fax or registered mail to the agency confirming that she disputes the “debt” and that she would like them to go to court if they think they have a case (which they don’t). Under BC’s consumer protection laws, the agency is then prohibited from communicating with her anymore.

We arrange to fax her a copy of our standard letter for these situations. She thanks me and we say goodbye.