RE-Blog #15: FAMILY HOMES ON RESERVE AND MATRIMONIAL INTERESTS OR RIGHTS ACT

Originally Posted: June 17, 2013 - http://batchelorstammlaw.com/2013/06/family-homes-on-reserve-matrimonial/

 

FAMILY HOMES ON RESERVE AND MATRIMONIAL INTERESTS OR RIGHTS ACT

THE BAD NEWS IS…

In 1986 the Supreme Court of Canada in Paul v. Paul and Derrickson v. Derrickson ruled that courts cannot apply provincial or territorial family laws on reserves governed by the Indian Act if doing so would alter individual interests in matrimonial real property on reserves.

This unique situation arises because of the nature of reserve land which is held collectively by the band.  Individual band members cannot own land outright, but may have rights to possessionallocated under a Certificate of Possession.

This means that upon the breakdown of a marriage or common law relationship, a person can ask the court to determine how to divide the matrimonial property, such as house, cash, cars, etc..  However,a court cannot force the sale of a home on a reserve or re-allocate rights of possession or occupation of a home because provincial/ territorial laws cannot change the rights of individual First Nation members to their land.

This leads to unfair situations where a Certificate of Possession has been issued to only one spouse for land where the family home is located.  The other spouse cannot even temporarily stay in the family home, even if that spouse has custody of the children.

On reserve, there are no existing laws to prevent a spouse who has his or her name on the Certificate of Possession from selling the family home without the consent of the other spouse, whose name does not appear on the Certificate of Possession. This applies during a marriage or after a separation. As a result, on‑reserve residents have unequal protections, rights and remedies in relation to matrimonial real property compared to other Canadians.

Conversely, if both spouses’ names are on the Certificate of Possession, neither spouse can prevent, even temporarily, the other spouse from staying in the family home. This differs from land located off reserve, where courts can decide which spouse gets to stay in the family home, regardless of whose name is on the title.

THE GOOD NEWS IS…

There is a move afoot to address the inequality between off and on-reserve matrimonial real property rights and protections. On June 11, 2013, the federal government’s Bill S2, “Family Homes On Reserve and Matrimonial Interests or Rights Act” passed its third reading.  This Bill will provide many of the legal protections relating to matrimonial interests or rights that are applicable off reserves to individuals on reserves.

Under Bill S-2, First Nations will have the choice of enacting their own laws related to matrimonial real property, laws that can be designed to meet their particular needs and respect their customs, or following the provisional federal rules. A 12-month transition period was added to the bill to provide some time for First Nations to enact their own laws before the federal rules take effect.

For more information, please go to http://www.aadnc-aandc.gc.ca/eng/1370978535769/1370978580800

Article authored by:

Guuduniia La Boucan, Barrister, Solicitor and Notary Public, BSc, JD,
Associate Lawyer

Email Guuduniia!

Re-Blog #14: …without (extreme) Prejudice

Originally Posted: June 7, 2013 - http://batchelorstammlaw.com/2013/06/without-extreme-prejudice/

 

 

Settling your claim without (extreme) Prejudice:

Settlement privilege and without prejudice communications

    As a guy with a law degree I get asked a lot of questions. One that seems to keep coming up is, “What does the “Without Prejudice” mean on the top of letters and emails?”  

It means that the writer wants to communicate with you off the record in the hopes of settling your claim.
 
 Without Prejudice is legal shorthand for settlement privilege. Lawyers and people who fancy themselves legally trained write it on the top of documents to let other people know that they don’t want those things showing up in court. It is a signal from the writer to you that if you try to bring it to court the writer will ask the judge to exclude it on the basis of settlement privilege.  
 

So what is settlement privilege?  

Settlement Privilege  

 Settlement privilege is a rule of evidence that allows courts to exclude documents or other communications made by people who are trying to negotiate a settlement. The point is to let people talk freely so that there is a better chance of making an agreement and staying out of court. Who would be willing to acknowledge any weaknesses or make low offers if they knew a judge would be holding it against them later?

That’s probably enough information to get you by, but to be safe I’ll break it down a bit further to make sure I don’t leave you with the wrong impression. First let me say a word about evidence and privilege generally, and then I’ll give you a few more details about settlement privilege.  

What’s the deal with evidence?

If you end up in court then odds are your trying to convince a judge of something. Judges know the law, but they don’t know the facts of your case. To figure out the facts of your case, judges rely on evidence. Evidence can either be stuff witnesses say in court, or it can be documents, or cool stuff like videotapes and murder weapons.  

The evidence you can bring to court to prove your case is limited by all kinds of legal rules called the Law of Evidence. Somewhere in the compendious volumes covering what is allowed into court, and what isn’t there is a section called privilege.  

What is Privilege?  

If evidence is privileged it means the court won’t consider it, unless the holder of that privilege decides to waive privilege and let it in. In a way you could say that someone has the privilege of keeping this evidence out of court.  

The most talked about privilege is solicitor client privilege. Solicitor client privilege prevents the court from hearing what a client said to his or her lawyer when getting legal advice. The holder of this privilege is the client, meaning that if the client wants the court to hear about those discussions the client can waive that privilege and allow the evidence to come in. Getting back to Settlement Privilege.  

What is Settlement Privilege?  

As I said earlier, settlement privilege is meant to help people negotiate openly. It protects all communications that are made as part of settlement negotiations. The privilege is held by all parties to the negotiation. That means that the evidence won’t be allowed to come in to court unless both parties agree to waive the settlement privilege.  

Of course like all things in the law there are exceptions. The big exception you should know about is for Costs.  

What are Costs?  

When people go to court, other than small claims court, the loser usually has to pay the winner a portion of his or her legal fees. We call these fees costs. That means if you lose at trial, in addition to paying whatever the award is you will also have to pay costs.

 What do Costs have to do with Settlement Privilege?  

In most courts there are rules to encourage settlement. These rules may have a costs penalty for people who turn down reasonable settlement offers. An example is in some BC Supreme Court cases where if you turn down an offer and the judge doesn’t give you an award equal to or greater than that offer then you have to pay double costs for all the legal work done after the offer was refused.  

As you’ve probably guessed the court would need evidence on when an offer was made and for how much in order to enforce a rule like that. This means that settlement privilege will normally not apply to determining the amount of costs after the trial.  

Sometimes you might see “Without Prejudice (except as to costs)”. This is just being extra clear about this particular rule. The fact is that most without prejudice documents could be legitimately brought into court to determine costs.  

Bottom Line  

You got something that says “Without Prejudice” on the top. Can you use it in court? Probably not. But remember those words aren’t a magical incantation. If the document has nothing to do with settling the case then you might still be able to get it in. See a lawyer.  

You sent something out with “Without Prejudice” on the top. Can someone else use it in court? If it was about settling the claim then probably not. It was about something else, then yes it can probably be used as evidence.  

You sent out something about settling your claim, but didn’t put “Without Prejudice” on the top. Can it be used in court? Probably not. Settlement privilege should apply whether or not you used the magic words. Of course it’s simpler for everyone if you use them.  

You are worried about what evidence can show up after the trial is done to determine costs (ie. The portion of legal fees the loser has to pay). Settlement privilege normally doesn’t apply to a hearing on costs. The rules are specifically designed to look at offers to settle, so odds are that everything will come in.  

I hope that helped clear up the hidden meaning of the words “without prejudice” and remember, when in doubt see a lawyer to sort it out.  


 Article authored by:   Cody Walker, Law Student, CD, AA, JD

Re-Blog #13: Beyond the Polyester Veil

Originally Posted: May 22, 2013 - http://batchelorstammlaw.com/2013/05/beyond-the-polyester-veil/

 

 

A Personal Injury Negotiations Case Study

 

Article authored by:

Cody Walker, Law Student, CD, AA

       

Download PDF version here.

Re-Blog #12: The New Family Law Act in BC

Originally Posted: Mar. 26, 2013 - http://batchelorstammlaw.com/2013/03/the-new-bc-family-law-act/

 

   

"The New Family Law Act in BC" - Powerpoint Presentation (downloadable)

Re-Blog #11: Supervised Access

Originally Posted: Mar. 22, 2013 - http://batchelorstammlaw.com/2013/03/supervised-access-fact-sheet/

For your reference the team at Batchelor Stamm has provided a downloadable fact sheet on 'Supervised Access'.

Re-Blog #10: No Contact Orders

Originally Posted: Mar. 22, 2013 - http://batchelorstammlaw.com/2013/03/no-contact-orders/

Has your partner or someone you know taken out a no contact order against you?

What is a No Contact Order?

A no contact order is a legal decision made by a judge which restricts behaviour. You cannot contact the person who has taken the no contact order out against you. This means you cannot call, text or communicate in any way with this person. Communicating includes messages through other people, Facebook messages or Twitter updates. If you communicate with the person who has taken out the no contact order you are committing a crime.

There are four different types of no contact orders; it is important to know which type applies to you. Each type is described below.

1. A condition of release from custody before trial: If you have been arrested for assaulting or threatening your partner, a police officer, justice of the peace or judge may order that you do not contact your partner until your trial.
2. A condition of probation: If you plead guilty or are found guilty of a crime, you may be given probation, which is a court order to not do certain things for a specific period of time. One of the things you may not be able to do is contact your partner, which is the no contact order condition of your probation. A probation order lasts for up to three years.
3. A criminal peace bond: A peace bond is a court order to prevent you from committing a crime or harming someone. Your partner may ask for a peace bond, in which case you will have to attend court to see if the peace bond is justified. A peace bond may last for one year.
4. A civil restraining order: A restraining order is a civil order which mean you cannot contact, or go physically near the person who has taken the restraining order out against you. Restraining orders may last for long periods of time, based on the judge’s discretion.

IMPORTANT to keep in mind if you have been given a No Contact Order

• If your partner has taken out a Contact Order against you they have the right to change the locks at your house to make sure you do not enter. Your partner may change the locks to your house before you are released from lock up.
• No contact orders can be in effect for different amounts of time. It is vital to know how long your no contact order is so that you do not breach it.
• You cannot communicate with the person who has the no contact order against you, even if they contact you first. If the person communicates with you and you respond, you will be charged with a criminal offense.
• You can apply to the court to have a no contact order changed. A judge will decide if the order can be changed.
• Do not return to your home under any circumstances if your partner has taken out a no contact order. If you need to collect your clothes, laptop or anything else, contact a lawyer, a court worker or justice counsellor to find out how retrieve your possessions.

If you have children and a court order or a No Contact Order has been taken out against you

Your partner may have gotten a court order which allows you to see you children under supervision only. If you do not believe this is in the best interests of the children you may contact your lawyer, a family justice counsellor or see the family law website (www.familylaw.lss.bc.ca) for advice on how to have this order changed.

In order to ensure you can continue to see your children,you can talk to a family justice counsellor who will explain the steps that can be taken through family court (as opposed to a criminal court) even if your partner has taken a restraining order out against you. You may have to get a court order to have access to your children.

If you have to go to court after a domestic violence incident

If you have to attend court, you can either represent yourself or have a lawyer represent you. If you chose to represent yourself it is wise ask for help from a duty counsel or a court worker to make sure you understand the court procedures. If you do hire a lawyer, it is important to make sure they understand your position and the facts you want the judge to hear. The only time you will have the opportunity to talk to the judge directly is as a witness or after you are sentenced at the end of the trial.

Going to court

If you have been accused of a crime you will have to go to court. In court you will either plead guilty or not guilty to the crime you are accused of. If you plead guilty, you will not have to go to trial, but you will still be sentenced in a court. The prosecutor, or the lawyer bringing the charge against you, will ask the judge for a specific type of sentence. After this, you or your lawyer will explain your side of the story to the judge. Finally the judge will decide what your sentence should be.

If you plead not guilty, you will have to go to trial. A trial is an opportunity for the prosecutor to have witnesses explain the situation to the judge. You or your lawyer will then be able to put forward a defense to the judge. A defense is a legal argument to avoid being charged with a crime. During the trial, if you are found guilty, the judge will sentence you.

Re-Blog #9: I had to do it

Originally Posted: Mar. 22, 2013 - http://batchelorstammlaw.com/2013/03/i-had-to-do-it/

 

I had to do it: the defence of necessity

I had to….

• bust in the door. She had my keys and wouldn’t give them back, and I needed to go to work.
• drive the car after drinking. My car was blocking my buddy’s car and he had to pick up his kid.
• steal that food, my family was starving we would have died.
• break into that cabin, we were lost in the woods and there was a blizzard, we would have frozen.
• throw James to the hungry wolves, otherwise they would have eaten all of us.

I HAD NO CHOICE!

Introduction

The “I had to do it” defence is known in legal circles as the defence of necessity. This is what we call an excusatory defence. It allows the court to excuse you for committing the crime, even though you did it, because we are all human and sometimes in an emergency we try to save our own skin instead of obeying the law. So far it’s sounding good, but the fact is that the court takes a very narrow view of what is excusable. From the list above only one of those claims is likely to get anywhere near a necessity defence. Extra points for you, if you can figure out which one.

While you’re thinking about it, let’s talk a little bit more about how the necessity defence works. The defence of necessity can save you when three things come together:

(1) There is imminent peril (aka something really bad is about to happen);
(2) There is no legal way to avoid disaster;
(3) The harm you caused by breaking the law is less than or similar to the harm you avoided.

Imminent Peril

Those circumstances might be difficult enough to find on their own, but it gets even harder when we pin down what imminent peril means.

First of all the danger can’t befrom somebody else being violent. When somebody else is being violent and you do something to stop them we look at the law of self-defence (also defence of others, and defence of property). It also can’t be because of threats to you and your loved ones. When you have to do something because of threats we look at the law of duress. Let’s save those for another day. The type of danger I’m talking about is from nature or forces other than man. For example a huge storm at sea, a fire, a medical emergency, or wild animals.

The danger has to be both significant (ie. not you will be late for work, but someone will be badly hurt or die), and imminent (ie. happening now, not sometime in the next day or so). If it’s not a significant you’re expected to obey the law and suffer the consequences. If it’s not imminent you should keep trying to find a legal solution until it becomes imminent and you run out of choices.

The last part is that it can’t be a foreseeable harm. If you throw yourself into the lion exhibit at the zoo you should realize that the lions might attack you. That’s foreseeable. So when you start shooting all the lions you won’t have a necessity defence because you are the one who caused the imminent peril in the first place.

Okay, so we have imminent peril. If you don’t do something now people will die. It’s not your fault that you’re in this situation, it just happened but now you have to deal with it. Step 2. Is there a legal way out?

No (legal) way out!

Your standing on the street corner, your friend just got stung by a bee. He’s allergic. He needs his auto-injector and if he doesn’t get it he might die. You don’t have one and for some reason out of everyone’s control neither does he. Then you see one behind the glass of the pharmacy window right next to you, but the store is closed. You’re thinking about throwing a rock through the window and stealing that auto-injector. You probably have imminent peril, but is there a legal way out?

If you have a cellphone you should probably call 911, if not you should shout for help. If it turns out there is an ambulance around the corner, or there is someone else with an auto-injector walking down the street, your buddy can be saved without committing any crimes.

Just as in our example the legal solution that people tend to forget about is usually getting help. Make sure before you resort to crime that there isn’t a legal way to resolve things, like getting help.

You’re staring down imminent peril, there’s no legal way out, and no-one is going to help you. Your about to commit that crime. There’s only one more step before you can rely on the defence of necessity.

The scales of justice

The harm you’re about to cause has to be less than or at least roughly equal to the harm your avoiding. So breaking the window and stealing the auto-injector to save a life seems like a safe bet. Similarly breaking into the cabin in the woods to avoid freezing to death seems safe.

On the other hand it’s hard to imagine what would justify setting a school on fire, or cutting off someone’s arm. It’s even harder to imagine a case where killing someone would be excusable even though it seems to come up in the movies all the time.

Conclusion

The “I had to do it” defence is one of the better excuses to use on your friends. They nod sympathetically and say “I get it, you had no choice, you would have been late for work, you could have lost your job….” Unfortunately it’s one of the hardest defences to use in court, but….

If you had to do it because if you hadn’t

• Something terrible would have happened, and
• There was no time to wait in case the situation improved, and
• You couldn’t have avoided the situation by thinking ahead, and
• There was no legal way out (including calling for help), and
• You caused less harm than you avoided.

Then you might have a necessity defence. Otherwise all you have is explanations that make the crime seem either better or worse and effect the harshness of the sentence you will get.

Article authored by:

Cody Walker, Law Student, CD, AA