courts, divorce, family law, law, weddings, wills & estates

Til Death do us part

As the days grow short, rain rattles against the window panes and Christmas carols take over the Muzak in the mall, normal people start their Christmas decorating and baking while we lawyers, ever marching to a different drummer, lumber into action in a mad dash to complete our  mandatory  annual CLE credits.

In order to maintain our ability to practice for the coming year we must do several things: refrain from getting caught committing any indictable offenses; pay the law society an inordinate sum for fees, and lastly, provide proof of attendance of at least 12 hours of “lawyers school.”

Not being one to leave things until the last minute I resolved this year to bag all my necessary educational credits well before the 30 November deadline-whole days before, so I signed up for a course about what’s new and exciting in the world of wills and estates.

To my surprise I found the course most instructive: indeed I learned a lot about marriage. Now having been a husband for almost 40 years now, I thought I knew a thing or two about the institution-I even consider myself partially house broken; but, it seems there is always more to learn.

When I began my own journey into wedded bliss, a formal walk down the isle was the sole precursor to asserting any claims at all againswed3t the property or income of a significant other, in the event that things didn’t work out, and marriage was defined as “the union of one man, and one woman, for life.” Pretty simple, straightforward  stuff, that even a poor country lawyer could suss out.

Nowadays, as a result of the Family Law Act, the Wills Estates and Succession Act, the Charter, and a handful of other legislative changes, as interpreted by recent court decisions, its a whole new ball game. In modern times, one can, it seems, slide into matrimony without even knowing it!

Distinctions between “formal” and “common law ” marriages have long since been consigned to the dust bin, along with any notion that your spouse need be someone of the opposite gender. One can acquire significant support obligations in any relationship that endures for longer than two years, and a claim against some pension benefits can be advanced after only a year of togetherness.

The courts now instruct us that we need to run through a bit of a checklist  of activities to determine if two people seen hanging out together may in  fact be married in the eyes of the law. Are they doing things that suggest they are in a “marriage -like  relationship”?

Do they live together, sleep together, pool their finances, vacation together, own things  together, bicker, or complete each others sentences ? Now here’s where recent judicial pronouncement make it interesting. Courts have ruled that you no linger have to live together, or have sex, or pool your resources in order to be deemed to be married. You can inadvertently acquire a spouse if your relationship ticks a sufficient number of “marriage-like relationship” boxes.

This can be a big deal if you happen to die without a thoughtful estate plan in place, since your “spouse” steps to the head of the line to claim a big chunk of your estate, as well as life insurance, pension benefits, RRSP’s  and the like. For most, their long term relationships are sufficiently “marriage -like” so the question doesn’t come up, but for many, it does. Consider seniors who acquire companions late in life, never thinking that their friend might displace their children for a share of their estate  or those whose time together is punctuated by long periods of separation, or those who fall into long distance relationships.

We live in interesting times- it didn’t used to be so hard to tell if you were married !

 

 

courts, law, lawyers, negotiation, wills & estates

Fighting for the ashes

There is nothing like a day long seminar on the intricacies of wills and estates to set the mind adrift to wander freely amongst half forgotten stanzas of classical poems. It happens to me every time.

Last week it was a reference to the proper drafting of clauses pertaining to the disposition of a testators ashes (yes, we lawyers actually attend seminars about such things!) that transported me instead to the words of Lord Macaulay’s famous Horatius at the Bridge:

To every man upon this earth

  Death cometh soon or late.
      
And how can man die better

  Than facing fearful odds

For the ashes of his fathers

  And the temples of his gods?”

How indeed! In a modern world characterized by multiple marriages, and blended families, the custody and disposition of a person’s ashes takes on increased importance, if for no other reason than that their existence creates a flash point in disputes between first, second or even third families. Sometimes an Horatius is needed to guard those ancestral ashes.

I recall a  bitter, bitter case I had as a young lawyer that pitted an estranged wife against a new girlfriend (my client) over pension benefits and the like. At one point in the proceedings a demand was made upon my client to surrender the ashes of the deceased  husband/boyfriend. She responding by mixing them up in a bowl of porridge and eating them, then later in court turning to her rival to announce with a Cheshire cat grin exactly what she had done. Where is Horatius when you really need him?

Recently a marathon family mediation session at our office, involving a daughter ( by a first marriage) and a wife (by a second marriage) finally settled, with the tipping point being a concession as to the custody of the ashes of the deceased.That one issue loomed much larger to the parties than the considerable sums of money that were in play in the negotiations.

The law offers one precious little guidance when such disputes erupt  – who has the greater right to say where a person’s ashes should be scattered – the deceased’ children, or their current companion or spouse? Its the sort of issue judges are loathe to tackle- tending to growl at counsel to step out into the corridor and sort it out between themselves. The topic comes up more than you might imagine, we know, from the parade of disgruntled heirs that seek consultations with us.

I probably should have paid more attention in the seminar, and less time mentally  reciting poetry, since the best solution is advance planning and proper will drafting. If your Facebook status reads as “Its complicated”, or even if you are just working on your second marriage, as pretty much everyone is, you probably should give some thought as to whose mantle you want your ashes to live on after you pass. At the end of the day, the decision will rest with your executor, who will be bound by what you have stipulated in your will.

Remember that your cremains may have extraordinary sentimental value to your children, as well as your current companion, so it is a decision that should not be taken lightly, and once taken should be fully recorded in your will, and also discussed with your executors during you lifetime..

But, if you  simply want to piss everyone off, or really can’t decide who should have them, consider blowing your entire estate in order to have  your ashes launched into space in a space burial. There are at least two companies, Celestis and Elysium, that for a very handsome fee will launch tour cremains into outer space ! No ashes, no money left in the estate- no problem! ( Sorry Horatius, modern technology may have made you redundant)

 

 

 

courts, divorce, family law, law, lawyers, Legal Aid, pro bono law

What’s in a name?

So, the pointy heads at the law society have apparently decided to create a category of law society licensed individuals who would be allowed to do most, if not all of the things that lawyers can do, such as giving legal advice, drafting court documents and appearing in court, but all without the tedious and expensive requirement of a full law school education, or lengthy on-the-job training.

The  Law Society’s working title for this new category of near-lawyers is “legal service provider”, and the rationale for introducing  the category appears to be that it’s far too expensive for the public now to hire real lawyers, so partially qualified lawyers should be encouraged to practice, in the hope that they will work cheaper, and thus solve our access to justice problems.

As far as I know no one has ever actually asked the public whether they would buy into the concept of a multi-tiered, price differentiated market for legal services. Personally, I’m not so sure that they would opt for cheaper representation by lesser qualified individuals, when playing for all the marbles, but then I’m biased!

 

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Of present concern however is, what on earth will we actually call them? Whenever something new, like a new vocation, is invented, it needs a colloquial name. Thus, our first dollar coin became a “loonie”, and spacecraft riders became “astronauts”. I can pretty much guarantee that “Legal Service Provider” isn’t going to stick- it sounds too much like something dreamed up a committee of bureaucrats. We need something better- a catchy name that captures the essence of these purveyors of cut-rate legal services will be all about.

Let’s be clear, they won’t be “lawyers”, and frankly, that term, or its derivatives, ought to be reserved for those of us who are fully credentialed. It would be misleading to describe them as  some sort of hyphenated lawyer, such as as”mini lawyers”, “quasi lawyers” or “near lawyers”.

So, how to devise a name or acronym that doesn’t include the term “lawyer”? Well, consider that when Sir Robert Peel invented the metropolitan police, they quickly became known as “Peelers” or “Bobbies” after their creator. Perhaps then these new creatures of the Law Society ought to be  dubbed “DABIs” ( short for Dumb Ass Bencher’s Idea)

Then again, since the intention is to create a less expensive class of legal professional, accuracy would seem to demand a reference to price in the chosen name, – like CRAP (for Cut Rate Alternate Provider) , or ECONO-PROs ( for Economy Providers), or CHEALTs (for cheaper alternative)

As an aside, just as lawyers can be expected to jealously guard our name, so too will we fight for our animals. We are, after all, the true  legal beagles, and eagles,  and the only legitimate sharks, so these new providers will have to content themselves with other mascots – (I think crows and dog-fish are  still available)

So, the problem endures- a new class of legal service provider in need of a name- dear reader, we desperately need your help- are you the wit that will coin the perfect moniker for those half trained individuals providing legal services for reduced fees? Put you thinking cap on, let your imagination run wild, and give us your comments please !

 

 

courts, law, lawyers, politics

More turmoil for SCOTUS

Unlike Canada, where Justices of the Supreme Court of Canada face mandatory retirement at age 75, thus giving the Prime Minister, (barring the unforeseen)  an orderly schedule for the making of  future appointments, US Supreme Court jurists serve for life, Continue reading “More turmoil for SCOTUS”

Big Law, courts, family law, law, lawyers, Legal Aid, pro bono law

Cage Fight!

Next weeks Law Society Annual General meeting is shaping up to be the sort of brawl usually reserved for MMA competitions.

In the first bout, the Benchers of the Society will square off against the family law bar, Continue reading “Cage Fight!”

courts, divorce, family law, law, lawyers, negotiation

Know when to hold em, know when to fold em- why lawyers hair turns grey

I once employed a junior lawyer who had come the law late in life  after a first career in academia. She viewed the practice of  law through a somewhat different lens, as a result of her previous rich and varied life experience. Some of her observations were very shrewd. Continue reading “Know when to hold em, know when to fold em- why lawyers hair turns grey”

Big Law, Big Pharma, courts, law, lawyers, Uncategorized

Of time Capsules and Big Pharma

Everybody loves a time capsule. Digging one up gives one a chance to reminisce about the good old days, chuckle over the quaint prices of bygone years, shake one’s head at the fashions of the day and ponder how the headlines of the time actually played out in subsequent years.

The last time I participated in building a time capsule I was in high school, and the occasion was Canada’s Centennial, but this weekend I think I’l give it another try. I’ll dig a hole in the back garden and plant a container with a copy of this week’s Vancouver Sun-the one with the headlines announcing David Eby’s quest to sue Big Pharma for the government’s costs in dealing with the opioid epidemic, together with a note from me to my future self.

Then, 10 years from now, I’ll dig it up, retrieve the note and re-blog its contents to the world. The note will say  “David! I told you so- I warned you that nothing good would come of suing Big Pharma. I told you it was a money pit and the only beneficiaries of your decision would be Big Law- the handful of downtown mega firms lucky enough to get a seat on the gravy train.”

The Attorney General, in making the announcement, claims that his department has learned many lessons from the “tobacco lawsuit”- a similar venture wherein various levels of government are suing the tobacco industry for healthcare costs related to smoking.

Frankly I find that hard to believe. The tobacco litigation has been grinding on for at least 10 years now, at a monstrous cost, and is nowhere near even going to trial. whole departments of well-paid lawyers have been spending literally years pawing through millions of documents. There are lawyers in the city, now starting to sprout gray hairs, who have worked on that single case for their entire career. The case has been a cash cow for the law firms involved, and many millions of tax dollars have been flushed down the drain

If I understand the premise of the lawsuit correctly, it is one of damages for misrepresentation- Big Pharma allegedly lied to us about opioids, telling us they were safe and non-addictive. That may be so, and I’m sure that some of the addicts the system is presently dealing with became so in all innocence, relying on the advice of doctors and taking medication that was prescribed to them. But I don’t buy that that subset of Addicts is at the heart of our present overdose crisis.

Surely the skyrocketing rates of drug overdose are caused, nor by misled consumers taking their  prescription medication, but  by the widespread introduction of illicit and adulterated drugs. People are dying not because Big Pharma lied to them, but because somebody laced their drugs with elephant tranquilizers. The only drugs that Big Pharma pedal are those which  the government has approved, and then only by prescription through a licensed pharmacy.  The overdoses however are coming from ingesting drugs being cooked up in basement labs, and being cut with substances such as fentanyl.

More and more our ponderous civil trial system is demonstrating itself to be an expensive and inefficient mechanism for governments to recoup damages in situations such as the present overdose crisis. The causes of such crises are simply too complex to be neatly pigeonholed into conventional theories of legal liability.

So, I have the hole dug and  the capsule assembled ready for a burial this weekend, but I just checked Facebook, and I think I’d better add a copy of my resume to the contents, since my senior partner has just posted in support of the Big Pharma litigation ! She’s obviously a proponent of  make work projects for lawyers!