29 October 2017

A Family Lawyer's Top Tips for a Legal TO DO List Before You Split

Many people think hard for months or years about splitting from a spouse before actually doing so. They weigh the emotional pros and personal cons of the split. How it might affect their children. How it might affect the family financially. But they often don’t speak to a lawyer prior to the split. 
I get that. I understand that you might not know it's going to happen until it happens. That you’ve got things on your mind. And frankly, advance legal advice won’t always prevent all the difficulties that might flow from a split with your significant other. 
But prior to your split there are a few things that you should attempt to check off on your legal to do list, that will make your legal life a whole lot easier after the fact if you're able to figure them out in advance. These things can become a whole lot more difficult to resolve after a split, depending on what you’ve been able to already accomplish. 


Lawyers (and courts) love paper. That's in part because people (unfortunately) lie all the time about things, or at least are hazy on past details, while documents usually can be trusted.
Sure, people occasionally forge documents, but in my 23 years of lawyering, I’ve found it to be pretty rare. So if you’re going to need to prove certain things about your family and finances after your split, documents are the best way to do that. 
After the split, you might lose access to documents, which is why you should gather together what you can before any change. Of course if you’re not the one initiating the split, you might be playing catch up, but just because your spouse has told you about a split doesn’t mean that your lives have necessarily significantly diverged yet. That might come in the following days or weeks. So act now on the documents, before it becomes difficult.
You need to gather documents primarily from four areas of your life:
  • financial (bank account, credit card, and investment statements);
  • taxes (income tax returns and notices of assessment for last 3 years);
  • property ownership and encumbrances (house title, car title, mortgage, liens);
  • children’s records from school, immunization, passport and other records.
Electronic or paper copies are fine. You don’t need originals, photocopies are fine (though originals are nice to have). Having these documents in hand will make both your and your lawyer’s life a lot easier (and less expensive) in the future.


In the good old days, which really weren’t so good, one party would move out, and that would be that. Now, couples conduct wars of attrition, with each spouse remaining in the family home as long as possible so as to not lose possession of it. It's true that if you move out, your spouse might change the locks on you, and it will be difficult to get back in short of having a court order. 
The key to determine here is do you want to keep the house, would your spouse want it, or would you both need to sell and find a new place? Secondly, what would each of you do in the interim for accommodation?
I know you might not come to any firm conclusions about where to live prior to the official split, but since the family home is for many couples their primary asset, it’s important to start working out these details. 


The default is now shared custody. Even if that isn’t the end result of your family change, you’ll still need to determine what you believe to be in the children’s best interests in the short term concerning school, care, and housing. While finalizing children’s interim arrangements might take some negotiation with your spouse, you should figure out your position in advance. 


If you’ve personally got sufficient employment income to keep you and your family supported in the short term, you may not need to worry about this one. But if you don’t, then you’ll need to figure something out. It could be using savings, it could be taking on debt. Whatever it is, it may become more difficult to execute such a plan after a split.
You are not well advised to strip all family assets, as that won’t play out well before a court who will later make a ruling on your case. But you still need an interim financial game plan. 
The reason these four factors are so important to figure out in advance of a split, if possible, is to avoid having to rush to court to deal with interim issues. I always advise my clients that family lawyers are a bargain if a settlement agreement can be kept out of court, but as soon as court proceedings commence resources start to be depleted due to all the legal pleading drafting, letter writing, and court appearance time that is required. 
If you've secured and figured documentary disclosure, accommodation, arrangements for children, and interim support all in advance of a split, then it's unlikely you'll need to rush to court to demand help with any of those items. But if accommodation, children and support all remain uncertain points of great contention, then court might be your only option - which is where at least having a treasure trove of documents will serve you and your lawyer well.

If you'd like to learn more, go to: www.nofearfamilylaw.com

09 October 2017

From Yank to Canuck! Top 3 Errors to Avoid for Americans (& others) Claiming Canadian Citizenship By Birth or Parent

Toronto - home to 2.5 million immigrants comprising 46% of Toronto's total population and 37.4% of all Canadian immigrants.
It might not be all that surprising in the current climate, but my law firm continues to see a surge of American applicants seeking to confirm their own or their children's Canadian citizenship. Confirmation of citizenship is quite different from applying to become a citizen. For those seeking confirmation they're already all citizens, but have never previously had a reason to seek out official confirmation from the Government of Canada that they have a right to work, study and live in Canada on an unlimited basis, including carrying a Canadian passport and voting in Canadian elections if they've reached the age of 18.
I haven't been able to find a reliable Internet stat on just how many Americans might be entitled to claim Canadian citizenship, but I suspect it's a large number since you don't even need to be born in Canada to be a citizen and there's always been large population flows across the so-called world's longest undefended border. If one of your parents was born in Canada, you can likewise claim Canadian citizenship and obtain a Canadian passport. There are some nuanced complicated rules when it come to who was born when, because the rules have changed from time to time and the rules that apply are mostly the rules when you or your parent was born. But lawyers can help you sort that out. 
A lot of the people who retain us to help them with Canadian citizenship confirmation have already tried to apply for confirmation, but the government returned their applications unapproved because of failure to fulfill the requirements. Sometimes those applications have been returned multiple times, leading to many months - perhaps even years - of frustration.
Yes, there's a DIY guide to citizenship confirmation. And yes, you can do it yourself. But if speed, an error free application, and lack of frustration is important to you, you should give serious consideration to using a citizenship lawyer. The cost is pretty reasonable as compared to some other legal services, and is less expensive even than many other immigration law services.
The top three citizenship confirmation errors we've lately seen in our practice relate to birth certificates, translation of documents, and photographs. All seem deceptively simple things to provide to the government. And yet, the government finds fault again and again with what is submitted because the government won't hold your hand, won't coach you through the standards, and applies a standard of perfection. 


a. Not understanding what is a certified copy

A certified copy isn't just a photocopy. And you can't take a copy into someone qualified to make certified copies without also bringing along the original, so that person can compare the original to the copy. That's what certified means: someone trustworthy has seen the original, carefully compared it to the copy, and then stamped and written on the copy, in the customary manner applicable in the territory the certification is being made in, that the copy is "true" to the original.
In Canada, notaries, commissioners of oaths and lawyers can usually create certified copies wherever your live. There may also be other officials like bank managers or school principals who are authorized to do so.
Overseas you should probably stick with a notary who can create a "Notarial Copy" which is generally even better than a certified copy.
Family members can't certify other family members' copies.

b. Attempting to use documents issued in Quebec prior to 1994

In Quebec, you might need to apply for a new birth certificate prior to applying for citizenship confirmation, even if you've already got a birth certificate or baptismal certificate. The Federal Government doesn't like those Quebec documents if they were issued prior to 1994.
Who knows why. I did two law degrees in Quebec, and I don't know why, though I suppose I could find out. You've just got to accept that that's the way it is, and apply for a more recent document. 


In Canada we all know there are only two official languages: English and French. Other than those pesky documents from Quebec mentioned above, the Government of Canada does not have any firm rules on document standards from a country which has produced the documents you might be submitting, but it does require that they be in English or French, otherwise the Canadian government worker processing them won't be able to read them. The government won't translate your documents for you, you've got to pay to do it yourself.
The documents can be translated either in Canada or overseas. Probably in Canada is easiest, since then it's easier to prove you've used a certified translator; make sure you submit that proof. If done by someone who isn't certified in Canada, you'll need to submit a separate affidavit from that person attesting to not only the accuracy of the translation, but also the fluent proficiency of the translator in both the language being translated from and the language being translated to.
The government will NOT take your word on the accuracy of translations without an official translation.


You'd think photos would be the easiest thing of all to provide. We've all now got camera phones that take great pictures. I often try to justify my overpriced new phone to myself by thinking that I actually bought a really great camera, with a phone thrown in for free. But the Government of Canada has yet to enter the digital photo age.
When I went to get my United Kingdom passport (I'm a dual citizenship), they were more than happy to accept the $3 mall photo booth strip of photos I had procured. Not so with Canada. Mess up the photos, and your application will get returned, sometimes with little explanation as to what went wrong.
Photos have a mere 15 requirements to qualify as acceptable (as quoted from the IRCC website):
  • Photographs must be printed on quality photographic paper.
  • Provide the name of the photographer or the studio, the studio address and the date the photos were taken on the back of the photos
  • Print the name of the person on the back of the photos.
  • The photographs must be identical and taken within the last six months. They may be either black and white or colour.
  • The photographs must be clear, well defined and taken against a plain white or light-coloured background.
  • If the photographs are digital, they must not be altered in any way.
  • Your face must be square to the camera with a neutral expression, neither frowning nor smiling, and with your mouth closed.
  • You may wear non-tinted prescription glasses as long as your eyes are clearly visible. Make sure that the frame does not cover any part of your eyes. Sunglasses are not acceptable.
  • A hairpiece or other cosmetic accessory is acceptable if it does not disguise your normal appearance.
  • If you must wear a head covering for religious reasons, make sure your full facial features are not obscured.
  • The frame size must be 50 mm x 70 mm (2″ x 2 ¾″).
  • The photographs must show the full front view of the head, with the face in the middle of the photograph, and include the top of the shoulders.
  • The size of the head, from chin to crown, must be between 31 mm (1 1/4″) and 36 mm (1 7/16″).
  • Crown means the top of the head or (if obscured by hair or a head covering) where the top of the head or skull would be if it could be seen.
  • If the photographs do not meet the specifications, you will have to provide new photographs before your application can be processed.
Don't staple the photo to the application - a paperclip is the most severe form of attachment tolerated.
So to avoid errors, especially as to size, just go to a passport photo place. Drug stores often do this. For about $10 or $15 dollars, you'll get your two photos. The Government of Canada is really picky about its photos.
Succeeding in your citizenship confirmation application involves not just adhering to the letter of the law, or the letter of government policy, but also the letter of the minute application instructions. Misinterpret those instructions, and you'll be receiving a return to sender envelope from Immigration, Refugees and Citizenship Canada.

Learn more at www.compleximmigration.ca