SHOPLIFTING AND SCARY NOTICES

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!

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CHILD SUPPORT SHENANIGANS

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.

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

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.

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

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.

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UPDATE: ONTARIO DEMAND LETTERS

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.

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YOU CANNOT INHERIT A DEBT

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

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CONSUMER ALERT! DEMAND LETTERS THREATENING LEGAL ACTION IN ONTARIO!

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.

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Family Maintenance Orders and Multiple Jurisdictions

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.

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Immigration Sponsorship Breakdown

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.

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