In Canada drunk driving or driving under the influence (DUI) is an act of operating or having care or control of a motor vehicle while under the influence of alcohol and/or drugs to the degree one’s mental and motor skills are impaired.  It is not only illegal in Canada, but is a criminal offence that is heavily punishable under the canadian laws.  DUI offences are very different from other driving and moving violations such as Careless Driving, Red Light Offences, Amber Light Offences, Expired License, Seat Belt, Speed Racing, Driving Under Suspension and so on.   While the Traffic and Moving violations rules are regulated by provincial legislation, DUI is a federal legislation that applies across Canada.  The Criminal Code of Canada has 2 distint sections that decribe the offences that directly address drinking and driving.  Note that a driver can be charged with both these officences at the same time.  See this case for example:  Impaired Driving Charges for both Section 253(1)a and 253(1)b.

Section 253(1)(a) makes it illegal to operate a motor vehicle or vessel or operate or assist in the operation of an aircraft or railway equipment, or to have care or control of a motor vehicle, vessel, aircraft, or railway equipment, while that person’s ability to operate is impaired by the alcohol, drugs, or a combination of the two (vessel is defined to include “a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine“).

Section 253(1)(b) makes it illegal to operate a motor vehicle or vessel or operate or assist in the operation of an aircraft or railway equipment, or to have care or control of a motor vehicle, vessel, aircraft, or railway equipement, while that person’s blood alcohol concentration (BAC) is in excess of 0.08 percent (representing 80 milligrams of alcohol in 100 millilitres of blood).

The conviction for drinking and driving will result in a criminal record (which will have serious influence on current and future employment along with travelling abroad).  If you are faced with a dui charge, a good lawyer will be able to help.  Lawyerahead.ca is the best free way to find a lawyer in Canada .   A person charged with DUI will most likely lose his license for a period of time also.  The rules and terms on license suspension and the return of driving priveleges depend on the case and on the provincial legislation.  In some cases the driver can even be sentenced to a jail term, even when no one was injuried.  Even after the return of the driving statuses, one can still expect to a numerous measures enforced measures enforced including the Interlock Ignition Device.  Interlock Ignition Device is a special device that blocks the vehicle until the driver provides a breath sample into it.  If the device registers the presence of any alcohol on the prospective driver`s breath, the car will not be started.  Needless to say that this device is expensive, cumbersome and even embarrassing.  It may seem that the measures against DUI are too strict, but once you take a look at the number of casualties and accidents that are caused by drunk drivers, it may put it into perspective for you. 

For more information on lawyers, toronto lawyers, vancouver lawyers and canadian lawyers, visit http://www.lawyerahead.ca/ 

How to Hire a Canadian Lawyer

Step One: finding a lawyer in the right area.

The right area here means both the right area of the law and the right area of the world. Where the case will be tried narrows your search to a particular location. Most attorneys stay within their own province, and even their own city when possible. Your question then becomes something like: “Who practices in the area of child custody disputes in Windsor?” Remember, the location may not be where you live, but where the matter will be tried in court.

If you are not sure what sort of lawyer you need (Real Estate or Tax?) you should ask an attorney in another, unrelated practice area to tell you. You can also check with the Canadian Bar Association, there are links to contact them and a FAQ.  Lawyerahead.ca has the most comprehensive profiles of Canadian Lawyers.  Alternatively, you can post your cases at lawyerahead.ca and have qualified lawyers contact you directly which in turn saves you the hassle of looking for a lawyer on your own.

Once you have decided on the area of law and the location, you are ready to narrow down your lawyer search.

Step Two: Look over public materials.

Most law firms either have websites or are peer reviewed at sites like Martindale.com or Lawyerahead.ca and you can view their presentations. At this stage, you are just gathering a few names (individuals and firms). You can find client comments at Martindale’s or Lawyerahead.ca as well as peer ratings (and rankings based on fees). This should give you some idea of how many attorneys are practicing that meet your location and expertise requirements.

Step Three: Interview.

Most firms offer an initial consultation, either by phone or in person. Here is where you have an opportunity to ask questions specific to your matter. Some questions to ask:

l What is your (or your firms) experience in this area of the law?

l What are the likely outcomes of my case and how long will it take to resolve?

l What are your rates and billing cycle?

l What is a reasonable estimate of how much this will cost overall, including expenses?

l Is it possible to save money by letting a junior or paralegal handle most of the case?

l What style do you think best fits my case - aggressive/passive, mediation/arbitration/trial?

Step Four: Final selection.

This is a final decision based on the impressions you received during your interview and what you found out about the firm in question. Who did you feel most comfortable with? Which office answered the phone quickly and seemed the most professional? Did their offices appear professionally run? What did other attorneys say about them? Did they answer your questions as completely as possible?

A word about costs. Attorney fees are not a good measuring stick. Hiring the least expensive isn’t always the best choice, nor is hiring the most expensive. Hire the best attorney you can within your budget - pay attention to fees, but pay more attention to the man or woman you are about to hire. A successful prosecution of your claim or a great defensive outcome is more important than a few dollars saved on a fee.

Word of mouth is a strong determinant in selecting a lawyer for some.  Like family physicians, a friend mentions the name of their much beloved doctor of 14 years and soon that doctor has a new set of patients.  In a sense, this applies to law, but more often than not, someone else’s attorney may not be the best representation for you.  Finding a suitable attorney is a process of understanding exactly what your legal needs are, seeking out an attorney who practices in these areas, and grilling them during a consultation to determine if they are your best choice.

            What do you need an attorney for anyway?  The law has many facets with different court systems set up to handle different types of cases.  A lawyer could plausibly have a footing in all forms of the law from contract to family, but it is highly doubtful that this sort of lawyer will have years of experience with each.  It is important before you go shopping for an attorney to isolate what kind of case you will be involved in.  Is this an effort to change the visitation arrangements with your children in Vancouver?  Vancouver Lawyers specializing in family law is best.  Do you need representation for a DUI charge in Toronto?  Toronto Lawyers specializing in criminal defense should handle this.  Once you have established your case type, it is time to go looking.

            There are many different ways to find lawyers.  Thanks to the Internet, you do not even have to leave your home.  Attorneys advertise their services on various websites like lawyerahead.ca and it has gotten to the point where it is a buyer’s market.  For any case type, there are quite a few qualified attorneys willing to handle it.  It boils down to a few resumes that stand out.  After you have a short list of lawyers worthy enough to represent you in court, set up consultations and see how they are in person.

            Consultations are two-way interviews.  The lawyer is determining whether they will take your case and you are deciding if they are good picks.  Solid experience is one thing, but nothing compares to sitting down face-to-face and seeing how a person handles themselves.  Are they congenial?  Do they seem preoccupied and disinterested in your case?  Having a list of thoughtful questions going in to a consultation will make the appointment more fruitful.  One should make a point to bring up the exciting topic of how much representation will cost, who exactly will be handling the case (will it be delegated), expected outcomes, and the timeframe from beginning to end.  If you are happy with their answers, you still have the choice to shop around.  Maybe the lawyer down the street will have similar experience expertise and mannerisms but charge $200 less.  Who knows?  Scheduling a handful of consultations ahead of time lets you flesh out your options a bit better and choose more wisely.

            After all that rigmarole, it is time to break out the checkbook and make a decision.  After all the vetting, the choice will sit well and the case will go smoothly.  The true test of course takes place in the courtroom and perhaps after favorable results, you might one day happily recommend your attorney to a friend.

Here are a list of recent cases on Lawyerahead.ca requiring legal representation from lawyers:

1. Writing a will
2. Speeding Ticket
3.  Work Place Accidents
4. Business Tax Arrears (business Income Tax)
5. Serious Motor Cycle Accident
6. Dog Bite
7. Possession of Marijuana
8. Spousal Support Review
9. Parternship Dissolves and Disputes
10. Impaired Driving / Drunk Driving
11. Common Law Separation
12. Sexual Harrassment
13. Common Law Prenuptual Agreements
14. Real Estate Litigations
15. Expired Reseller Agreements - Commercial Litigation
16. Adoptions
17. Private Adoption
18. Slip and Fall
19. Possession of a Controlled Substance
20. Search Warrants

Lawyer/Client Relationship

The relationship between a lawyer and client is best summed up by a synonym - a lawyer is an advocate. And an advocate is “a person who speaks or writes in support or defense of a person or cause.” Just as a physician is duty bound by their profession to protect and improve the physical health of their patient, so too is a lawyer bound to protect the legal health of a client.

The tradition of trust and service was important enough for even the Supreme Court to have stated, as far back as 1850,

“…There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; ”

The Lawyer’s obligations

Your lawyer is bound to represent you within the ethics of the profession and the strictures of the law. This means that without your consent (and in most cases insistence) they cannot act against your interests, and this extends to other cases they may take on as part of their practice. Some parameters attorneys must follow include:

·       Attorneys must be knowledgeable in the area of the law your case requires - it would be unethical for them to act without proper competence or without the ability to analyze the legal issues.

·       Your lawyer is required to follow your directions in how your case should be handled. He or she may present you with options and recommendations, but you have the final say.

·       Attorneys are forbidden to operate under a conflict of interest. They may not, for instance, represent both parties in a dispute.

·       Your lawyer must keep you informed as a legal matter progresses.

·       Any property in a lawyers custody must be kept separate from the lawyer’s own and must be surrendered when demanded.

·       Communications must be kept confidential - both by the attorney, their staff, and any others they hire. This obligation may at times be broken when ordered by a court for specific reasons.

Your lawyer is not required, and in fact is prohibited, from performing any illegal actions at your request.

The Client’s obligations

As a client, you are obliged to be honest and forthcoming with your attorney. Your communications are protected to allow you to fully reveal information, even embarrassing or culpable facts. Other obligations:

l  Being available to your attorney, both for simple communication and for legal proceedings you are required to attend. This means having good contact information and timely responses.

l  Cooperation. There may be legal reasons to do something you find onerous or simply inconvenient. Your lawyer will be handicapped if you argue and fight the help they offer. If you do not understand the purpose of some act or request - ask.

l  Payment. Clients are obligated to pay for the services they receive and should do so willingly. Attorneys will discuss rates and charges with you when requested, and clients should be comfortable with financial arrangements. However, your attorney is a professional who performs a service for a fee - a fee that should be paid.

For more information on Find Lawyer, Canadian Lawyers, Toronto Lawyers, Vancouver Lawyers and lawyers in your local area, visit www.lawyerahead.ca

Breach of contract happens quite often. Two or more parties enter into a good faith arrangement and during their relationship, one or more decide(s) for whatever non-legally valid reason not to hold up their end of the bargain. A few types of breaches are minor, material, fundamental and anticipatory.

Minor breaches occur when an inconsequential portion of a contract is broken. If a minor breach occurs, parties affected may still be bound to perform as they agreed according to the contract, but may be entitled to damages inflicted by the breach. An example of a minor breach would be a landscaper and homeowner entering into a contract where the homeowner wants top-of-the-line sprinklers installed. The landscaper ignores the request and installs second-tier sprinklers, which work just about as good and have the same 10-year warranty as the other system. After discovering this, the homeowner sues the landscaper to recover the difference in cost between the two systems. The breach is non-material because, in essence, the two products are the same (made from the same materials, same warranty, same performance), but still a breach occurred, because the contract stipulated the use of a specific brand.

A material breach refers to cases where one party acts in such a way that might require the other party to incur costs in an effort to rectify the situation. Using the same example as before, instead of installing the almost identical system, the contractor installs rusty, used sprinkler lines under the guise that they are top-of-the-line sprinklers. The system does not perform at all like it should and all the grass dies. Appalled by this, the homeowner takes the contractor to court for the costs associated with having the junk system removed, new sod planted and a suitable sprinkler system installed.

The above example borders on a fundamental breach of contract. Fundamental breaches are so serious, they allow victimized parties to not only sue for damages incurred, but to escape from performance. Using the same example, if the curious homeowner observed the landscaper shoving rusty old pipes into the lawn, he may consider it a fundamental breach, refuse to pay and sue for damages.

Another form of breach is an anticipatory breach. This happens when it is inevitable that a party cannot perform as they have promised, even though the nonperformance has not yet occurred. The homeowner’s bad day just got worse when he finds out that the landscaper he hired partied too hard last weekend and is in jail awaiting a bail hearing. Even though the job was set to start on Wednesday, the homeowner can safely assume the landscaper will not be able to hold up his end of the contract and may consider it a breach. The homeowner can terminate the contract and may consider taking the wayward contractor to court. Another example of anticipatory repudiation or breach occurs when the homeowner contracts with one landscaper to install the sprinkler system within a month. After two weeks of not hearing from the contractor, he pays his neighbor to install a system. Two days later, the landscaper shows up with all his supplies and workers only to find a system already installed. The landscaper may be able to sue the homeowner for breaching the contract because the homeowner made it impossible for him (the landscaper) to perform.

Find Lawyer by visiting www.lawyerahead.ca for your everyday legal matters.

Recent Breach of Contract cases in Canada:  Cargo Insurance Contract Breach,  Breach of Contract Liquor Licenses,  and Real Estate Contract Dispute

A trust is a device used to store assets and divvy them out under certain rules. Trusts contain any asset type a trustor (the person forming the trust, also referred to as grantor) chooses to put in it. Many trusts are setup with loved ones in mind, providing for them after the trustor passes on. Other trusts have charities as beneficiaries. Some have a mixture of both. Living and irrevocable trusts are two of the more common types and although they differ, the general principles for creating them are about the same.

Assets. Before creating a trust, it is important to know what the trust should contain. The trustor needs to make a list of what assets she owns and parse through to decide what the trust will eventually contain. Trust assets are under the control of the trustee or administrator of the trust so it is vital for a grantor to add only assets that they have no problem relinquishing control over. Even though a trustor can appoint herself trustee, it is important to choose wisely.

Professional help. There are sites that allow trustors to download the necessary documents needed to create a trust, but it would be a good idea to seek professional help. Even at the stage of listing his assets, a trustor may not have the experience or foresight that an estate lawyers do, which may come back to haunt him. A well-trained professional will know what to keep in and out of a trust, out of consideration for possible future events.

Trustee. Like the executor of an estate, trustees are in charge of administrating the assets and acting as an agent of the trust. This may include making sure beneficiaries receive monthly checks or the granting of scholarships to applicants- whatever the intent of the trust may be. One can appoint herself as trustee or in the case of a testamentary trust anyone (or any group) they so choose. After appointing a trustee, a successor should also be appointed in case the trustee dies or becomes unable to perform their duties.

Beneficiaries. Beneficiaries of the trust are heirs or those who benefit from trust assets. These heirs can be whomever the trustor chooses, albeit a charitable organization, business, friends or family members. Beneficiaries should be named specifically along with what they will receive.

Trusts yield many benefits, tax or otherwise. Setting one up may seem daunting, but it isn’t. With the assistance of an experienced lawyer and thoughtful decision-making on the part of the trustor, creating a trust is a relatively easy process.

For more information on Trusts, Canadian Lawyers, Find Lawyer, Toronto Lawyers and Vancouver Lawyers, and Estate Lawyers visit http://www.lawyerahead.ca/

If the death of a loved one isn’t enough to deal with already, many people face the hardship of a messy estate dispute. Some of the common situations that arise during disputes are lack of testamentary capacity, undue influence and intestacy.

Testamentary capacity refers to the will maker’s legal capacity to recognize what the will stipulates (what they’re signing). Meaning, that if, let’s say your grandfather signed a will during a bout with dementia, he may not know what he’s actually signing and the will would be invalid. Medical records and other evidences help validate these claims.

Undue influence is another unfortunate occurrence. In these cases a party manipulates the will maker into creating a will that favors the influencing party and isn’t in the will maker’s (or their family’s) best interest.

Duhaime.org cites Canadian author S. Waddams who poses two instances where undue influence occurs.

“The first is when the relationship between the contracting parties falls into an established category; a parent taking advantage of a child, a trustee of a beneficiary, a solicitor of a client, a priest of a penitent, a doctor of a patient. In these cases undue influence is said to be ‘presumed’ and a transaction - a gift or contract - will be set aside at the instance of the weaker party, unless the presumption is rebutted.

“In the second kind of case none of these special relationships exists, but it is still open to the weaker party to prove that the relationship between the parties was such that the stronger was enabled to take unfair advantage. This may be shown in either of two quite different ways: by actual pressure relating to the particular transaction, as in a case where the stronger party threatened to prosecute the weaker’s son, or by a general relationship of a trust between the parties of which the stronger party took advantage. It is plain that the undue influence umbrella covers two quite separate concerns, the first akin to duress - abuse of adversary power, the second akin to fiduciary duty - the abuse of trust.”

There is also the case of intestacy. There is a common misconception that the assets of intestates, people who die without a will (or a valid will), go to the government when in fact the living next-of-kin relatives receive these assets (in the case where no immediate relatives or next-of-kin can be found, the estate becomes the property of the Crown under the Escheats Act.)

Under the Succession Law Reform Act, dependants of either intestates or testates have a claim on the estate whether or not they are mentioned in the will. The act defines dependant as:

• the spouse of the deceased,
• a parent of the deceased,
• a child of the deceased, or
• a brother or sister of the deceased

For those dependants of the deceased that feel they were not properly provided for in the will, their lawyer will file an application with the appropriate agency for a hearing. At the hearing, the judge will determine what support is necessary and possibly suspend the administration of the estate until it is resolved.

Dependants or other beneficiaries who feel they’ve been disinherited should act immediately. Estate law can be time sensitive. If there are issues with the estate, you should contact a lawyer for a consultation and work to get the problems resolved as soon as possible.

To find a lawyer or for more information on Estate Litigation Lawyers, Toronto Lawyers, Vancouver Lawyers, and Canadian Lawyers in your area visit http://www.lawyerahead.ca

Lawyers interested in representing estate litigation legal matters can go here: Dispute Will, Undue influence and testimentary related disputes.

One of the most traumatizing experiences a person can ever endure is sexual abuse during their childhood years. The sensitivity of the topic itself makes it tough for many to discuss, let alone testify about in a court of law. Society and the media do their best to shame those who abuse children and even prisoners join the fray requiring many sex offenders to be segregated populations for fear of their lives. Yet the crimes continue.

According to The Badgley Report, “1 in 2 girls and 1 in 3 boys were the victims of unwanted sexual advances before the age of eighteen.” As disturbing as these statistics are, lenient sentencing for offenders offer little incentive for cessation.

Victims of violence offers examples of just how lenient the courts have been on offenders. Out of the eight cases cited, the longest sentence was seven years and the shortest 45 days in jail to be served on weekends.

Lenient in some ways, the courts are harsh in others. There is no statute of limitations on child sexual abuse. Discovering abuses that took place decades before can still be brought to court today.

Likewise, the National Sex Offender Registry requires offenders to register with them for 10 years or life depending on the severity of their crime. The registry serves its purpose by allowing communities to track offenders in their area, but this monitoring device can backfire as shown by stories where released offenders are beaten just for being sex offenders. Harsher penalties for offenders who fail to register may be necessary as well.

In Canada, the age of majority varies between provinces ranging from 17 to 19. According to the criminal code, the age of consent for sexual activity is 14 stating, ”Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body a person under the age of fourteen (14) years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.”

Many feel laws are far from perfect, but even the Victims of Violence website states that “Advancements in the laws governing the sexual abuse of children have improved.”

For more information on Sexual Abuse, Find Lawyer, Lawyers, Toronto Lawyers, Vancouver Lawyers  and Canadian Lawyers in general, visit www.lawyerahead.ca

Adult child support invokes the response that most oxymorons entail- say what now? Although adults are not children, some adult children or adult dependants cannot survive on their own and require the assistance of their parents. Some cases that fall under this category are when a son or daughter is mentally disabled or otherwise impeded by afflictions, depending on parents while attending university, or any other case that disallows these ‘children’ to support themselves.

The Divorce Act slips in a nifty little catchall allowing ‘other causes’ to be reason for adult child support. The act defines a ‘Child of Marriage’ as, “[someone] the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessities of life.” As blurry as the guidelines are for who exactly deserves support, judges have done a good job of restraining the age limit.

Some of the other causes affirming support payments according to case law include pregnancy, unemployment, and post-secondary education. According to the British Columbia Justice presiding in Wesemann v. Wesemann, he refers to his “four-step approach” to determine support:

1. Decide whether the child is a “child of the marriage” as defined in the Divorce Act. If s/he is not, that ends the matter.
2. Determine whether the approach of applying the Guidelines as if the child were under the age of majority (“the usual Guidelines approach”) is challenged. If that approach is not challenged, determine the amount payable based on the usual Guidelines approach.
3. If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not, the usual Guidelines amount applies.
4. If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial.

At minimum, this and other such meticulous lists depict how considerate judges are on the subject.

In the abstract for Child Support for Adult Children: When Does Economic Childhood End? Nicholas Bala notes, “Reflecting the changes in intact families where young adults are living with their parents longer as well as looking to parents for more financial support, compared to a couple of decades ago, the courts in Ontario and other Canadian provinces are now more likely to recognize the obligation to provide support for adult children.” Apparently, now more than ever, offspring are living at home and depending upon their parents far beyond the 18-year benchmark.

Although there is opportunity for exploitation because of its murkiness, adult child case law has done a good job so far of reining in the longevity of support and monitoring who and who doesn’t require continued support. Support tends to hinge on certain requirements (if for unemployment, that they are actively searching for work, or in the case of pregnancy that the young lady return to work once the baby is eight months old) that makes it less like welfare and more like welfare-to-work.

It is always recommended to consult a lawyer relating to such matters.

For more information on Find Lawyer, Lawyers, Toronto Lawyers, Vancouver Lawyers, Canadian Lawyers, Adult Child Support and Family Law visit http://www.lawyerahead.ca/