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FREQUENTLY ASKED QUESTIONSDivorce Law The following are some of the questions we hear most often from clients and prospective clients. These are general answers - they are not a substitute for a legal opinion that matches your specific situation. Please feel free to consult us if you need further information. I’m getting separated, and I want a divorce. Do I need a lawyer?Depending on your marital situation (children, support, access, and division of assets) a do- it -yourself kit probably won’t work for you. These are only good when you have an uncomplicated and uncontested divorce. Most divorces today are uncontested but there are usually a lot of other issues that have to be addressed, other than the simple request for a divorce. After a year of separation, a divorce is usually granted. There can be some hitches, especially if there are children and support payments to be made. Then, of course, you have to do all the work with the divorce kit, and filing documents is an added cost. You can get our e-book on this site which will give you a rundown on what to expect when couples separate. You will then be in a better position to decide if you want to go the do-it- yourself route. What is a peace bond?Sometimes, in cases where threats are made by one person against another, or there is a minor assault, the prosecutor will file charges under the Criminal Code of Canada, requesting a peace bond against the individual. The person who is the subject of the peace bond enters into a recognizance with the Judge - which is a promise to the Judge - to keep away, and have no contact with the other person who received the threat or assault. The person who is the subject of the peace bond also has to keep the peace, and be of good behaviour. If he breaches the recognizance, he or she will have to pay a fine. By agreeing to sign a peace bond, the individual does not get a criminal record. Peace bonds are usually used with people who are normally law abiding citizens and, for example, may have got into a heated argument with someone, and said the wrong thing or pushed that person (yes, pushing someone can be an assault). Most people who are the subject of peace bonds never end up in Court again. I always have a hard time trying to contact my lawyer to see how my case is progressing. I leave numerous messages, and sometimes it takes days before he calls. What can I do?Unfortunately, this is one of the major problems many busy lawyers face. It is certainly one that all professionals face. More often than not, the lawyer may have a good reason not to call. I remember being in a 16-week trial out-of-town which occupied my time 16 hours a day. It’s hard to get back to clients, and it is frustrating for both the lawyer and the client. On your next visit to your lawyer, you should discuss this problem, and voice your concerns. Most lawyers will do their best to accommodate you, and will arrange to have their secretary contact you if they are unable to. At least the communication will be restored. I’m in the midst of a lawsuit and it is taking ages to get to Court. Why so long?This can be a multifold problem. Depending on the type of case that you have, it could take quite long. Severe personal injury cases can take 5 to 7 years before they get to Court. In those cases, the problem has to do with obtaining medical evidence. It might take years to have a final prognosis. The other problem has to do with the Court system. A lot of people go to Court, and often times there are not enough Judges. It is not uncommon to have the Court booked a year in advance. Criminal trials in the Superior Court always take precedence, and sometimes civil trials are bumped to another date to allow a criminal trial to ahead. Some of the provinces are adopting new fast track systems to get a better handle on case management. Depending on the monetary value of your case, you might qualify under the new systems being implemented. For example, in New Brunswick, if your case is under $50,000.00 dollars, the goal is to get it to Court in about seven months. A lot of pre-trial matters are dispensed with, and time limitations are very tight. There are cost consequences for those who fail to meet the time constraints. I have been charged with a D.U.I. (driving under the influence). Can I beat the charge?Go to our free e-book on drinking and driving. It will give you a few ideas. There has probably been more law made with respect to D.U.I. cases than any other criminal charge in the Canadian Criminal Code. A lot of the law with respect to the Canadian Charter of Rights and Freedoms has evolved from D.U.I. cases. However, the government continues to plug the loopholes as lawyers discover them. D.U.I.’s can be won depending always on the particular facts of the case. Your best bet is that if you are going to drink, take a taxi. A D.U.I. conviction carries with it a criminal record, which follows you for life. You can get a pardon but it does not erase the criminal record. On a first conviction you will lose your license for one year, and pay a fine. The second time will land you in jail, usually 14 days, and the third time will get you 3 months at the Crow Bar hotel. Never mind what your auto insurance will cost. What is house arrest?Exactly that. A person who is convicted of a criminal offence, and has to go to jail, will be incarcerated in his own home. House arrest is not for all criminal offences, and usually applies to first time offenders, and the type of charge that they are found guilty of will also determine whether or not they get house arrest. House arrest allows the accused to work, and he or she will usually get 4 hours of free time on the weekend to take care of personal matters. Other than that the accused has to stay at home until the sentencing is served. It seems to be working in Canada. My parents are elderly and I have a joint account with them at the bank. If there is any money in the account when they die, do I get to keep it?Not likely. The latest decision from the Supreme Court of Canada says that unless the money in the joint account is willed to the other person signed on the joint account, it will go into the estate. I don’t think that this applies to husband and wife who are joint account holders but, for example, it would apply to any of the children who are on the joint bank account. If you have additional questions or want to contact us about your specific situation, please click here. ARE RRSP'S EXEMPT FROM SEIZURES?Not yet but maybe soon. RRSP'S are a way for people to make investiments to top up their employee pensions. You get an initial tax break to put money into an RRSP, and at some point in your retirement, you usually convert it to a RRIF, and start drawing a monthly payment (now taxable of course). There has always been an issue as to whether or not RRSP'S could be seized by creditors or on bankruptcy. Pension funds could not be seized but your RRSP which was to be a personal pension fund was not exempt from seizure; by creditors. A great deal of self employed individuals only had this vehicle with which to build up any kind of pension plan. If they fell on hard times, and declared bankruptcy, he or she kept there pension. An employee however who fell on hard times and declared bankruptcy, kept his pension. Not really fair. There is now some federal legislative which is to amend the Bankruptcy, and Insolvery Act. It is not in effect yet but it appears that RRSP'S and RRIF'S will be exempt from seizure. It may, however, not be retroactive, and there may be a window that will still put RRSP'S and RRIF'S in jeopardy for a period of time; perhaps only exempt from the date the new Legislation is passed. It is, however, a step in the right direction since many people do not have pension plans, and their efforts to build a pension plan should not be penalized if they fall on hard times.
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