In the Toronto case of Nylene Canada Inc. v Corporation of the Town of Arnprior (2017), the polymer manufacturing facility of Nylene attempted to hold the town of Arnprior liable for the difference between the amount it charged the company and the actual volume of wastewater discharged.

Nylene claimed that it had been overcharged since 2005 after it installed a deduct meter, which told the company it was discharging 7.5 to 9 million fewer gallons of water per year than what the town had been charging based on water consumption. It claimed that this was a violation of section 394(1)(c) of the Municipal Act, 2001, which prohibits the imposition of a fee or charge based on the use, consumption or purchase of a service other than one provided by the municipality.

The Town’s defence was that it was neither possible nor practical to accurately measure wastewater discharge, calling this a matter of administrative efficiency. Arnprior based its charges on a 2004 study which made recommendations to assist municipalities in meeting their obligation to move toward a financially sustainable drinking water and wastewater system.

The Court found that Arnprior was not in violation of s394(1)(c) because the Town itself provided the wastewater services and did not impose a charge external to its relationship with the ratepayer. It also found that Arnprior suffered a slight loss on the amount charged for wastewater services each year until 2014. The Court considered that the Town had made a reasonable attempt to estimate the costs of wastewater services and that it had not made a profit from these charges. The Court stated that the fees were not arbitrary given the direct correlation between the amount charged and the cost of operating wastewater services.

The Court also referenced case law to state that policy decisions attract immunity along with courses of action based on such policies provided that the decision-making process was rational and made in good faith. The Court noted that decisions associated with economic, political and social considerations are policy decisions and are to be decided by the government rather than courts.

Nylene brought this decision to the Toronto Court of Appeal who dismissed the appeal on September 12, 2017. On May 31, 2018 the Supreme Court of Canada refused leave to appeal.

By Sarah Hahn and Jacklyn Tuckey

The post Municipal Wastewater Charges appeared first on Macdonald & Sager LLP .

FAMILY & ELDER LAW reform is underway in Toronto. Reform of “the way we do things” that is.

Normally, when parties separate, they turn to the court system if they are unable to negotiate an agreement themselves with respect to the many issues which they may face. Often, they consult a lawyer whose main emphasis is to bring the matter to court or threaten court if negotiations are not going well. For many years, most FAMILY & ELDER LAW professionals have understood that the adversarial system represented by the Court is not the best system to deal with the sensitive, emotionally charged issues surrounding the trauma of separation. Even when people go to court they most often do not end up actually having a trial, as more than 90% of cases settle before trial. We often wonder why does it take people that long to come to an agreement? To that question there is no easy answer, but we certainly know that when they get that far along in the process, the parties have spent tens of thousands of dollars, dollars which they cannot really afford.

Several years ago, Alf Mamo, a prominent lawyer from London, Toronto, was commissioned by the Provincial Government to study the family court system and to make recommendations specifically around Family Court. Alf’s report was submitted to the Government and then nothing happened.

Last November, the Toronto Bar Association’s FAMILY & ELDER LAW Section, the ADR Institute of Toronto, and the Toronto Association for Family Mediation along with several other professional groups including the Collaborative Lawyers Association for Toronto, put together a program in an effort to flesh out and examine practical ways of dealing with the issues set out in the “Mamo Report” as it has come to be known. I was honoured to be one of the co-chairs of the program which was held during November 2009. We gathered together about 120 people for two days of workshops and asked the groups to examine how the system could be improved and to make recommendations that would be embodied in a report to the Provincial Government. The attendees were from a variety of different professional groups – lawyers, mental health professionals, members of the judiciary, members of the public who had experienced first-hand the workings of the existing system, professionals within the various ministries of government who deal with family court issues on a regular basis, representatives of different cultural and academic groups, law professors, and anyone who had an interest in process reform.

The results were rather surprising in several senses: First almost all groups agreed that for the vast majority of cases involving family breakdown, the adversarial system was not the best system. Secondly, the provincial government under the Attorney General’s leadership, took a very active interest in the process and promised to implement the recommendations if that could be done within the confines of provincial budgets. Third, although not very surprising, the recommendations which came out of the workshops were excellent. What was surprising is how well they were received. Now the provincial government is trying to implement FAMILY & ELDER LAW process reform across the province and many of the recommendations are being seriously considered.

What does all this have to do with mediation and arbitration? Well, the answer is fairly simple: Almost all groups recognize the advantages of mediation. If done properly, mediation can protect the parties’ interests while at the same time saving them tremendous expense both in terms of money and in terms of emotional trauma. Mediation affords people the opportunity of dealing with their emotions while at the same time rationally handling the financial and child related issues involved in every separation.

As importantly, other approaches to dispute resolution such as collaborative law are being recognized as excellent methods of achieving agreement through empowerment.

The provincial government is now dedicated to providing separating couples with information and advice on how best to handle their specific issues – information leading to a better method. Providing people with information and with knowledge is the key to breaking down the automatic adversarial system.

While there will always be cases and couples who need to go to court to have their issues resolved, the vast majority of couples who do turn to court and don’t need to may now be given that information and may now begin to approach their problems in a much less adversarial manner, which can only bode well for the children who also must live through the breakdown of their families.

To learn more about how mediation and other methods of resolving the issues surrounding your separation can help lessen the financial and emotional impact upon you, please contact our office and we will be pleased to provide all the information you need.

The post A Renewed Emphasis in FAMILY & ELDER LAW Cases appeared first on Macdonald & Sager LLP .

But now, with the Cubs in the World Series, tickets to the 3 games in Chicago are the hottest commodity available.  I heard the average re-sale ticket price was over $3,000 for a single seat!

As you can imagine with a very limited time supply and a huge demand, people were going nuts to try and get a ticket.  I don’t think even President Obama could get a ticket and he is from Chicago!

And now for the “interesting” FAMILY & ELDER LAW questions about those season tickets.

So with a married couple in Chicago separating and both spouses being huge Cubs fans there was the inevitable debate over who is getting the tickets to the one game they had tickets for?

The wife filed an emergency petition seeking to get the tickets.

The husband was able to get the tickets because he had purchased a ticket package deal for the season with some friends before the separation.

In this case the judge ruled that the husband gets to keep these tickets so long as he took their 12 year old son to the game and the husband was ordered to purchase a ticket for the wife in a comparable seating area.  With tickets going for around $3,000 on StubHub that will be a very expensive game for this couple to attend.

In trying to convince the judge that this was an “emergency” that required immediate court intervention, the wife argued that it would be extremely unlikely that the Cubs will reach the World Series again in her lifetime given that they haven’t been in the Series in 71 years.  The husband’s lawyer relied on the old adage  “Hope Springs Eternal” to argue that there is a greater likelihood that the Cubbies will be back sooner rather than later.

By: Douglas Manning, Partner, Certified Specialist in FAMILY & ELDER LAW

The post When sports fans divorce: Who gets the World Series tickets? appeared first on Macdonald & Sager LLP .

We pride ourselves on our democracy. Yet, many of us feel it is not working. No party seems to be able to fix the many problems currently facing us. Poverty, climate change, gross income inequality, all are dealt with differently by each political party.  Some parties recognize it and propose solutions. Other parties ignore, don’t understand, or are ignorant about the problems. One party pits itself against the other in an adversarial bombastic battle in which, now, all rules of normal civility are tossed in the dirt. Leaders distort reality in order to win power. Each party ruthlessly attacks the other’s leaders and party members as if their opponents were the epitome of evil. The “Leaders” unfortunately provide an example which many in society begin to follow. Whether it be England leaving the European Union, or the US electing a President more than half the people of their country did not want, the adversarial nature of party politics is not making the world a better, safer, place. It creates “winners” and “losers” – more division. It does not make society whole.

In families, when conflict erupts, the same type of “political system”, on a microcosmic scale, also can kick in. Conflicts over finances, communication, children, intimacy – all tend to become ‘adversarial’. One “party”, in an effort to persuade or take control, begins to demean the other – “you always do that – you never do this!” The defensive party then, for protection, attacks back – “you never do this and you always do that!” The conflict escalates. If it goes on long enough, the “parties” may find themselves at war in the adversarial system we call the Family Court.

What if there were no political parties? What if we were able to elect our own chosen representatives to actually represent us and not their chosen political party? What if that representative could actually represent the interests and goals of our own community, without having to tow the party line? What if all the representatives of all our communities had to get together and figure out a way to address the interests and goals of all the communities: our city, our town, our province or our country? What if rules were set up which prohibited engagement in an adversarial battle and required the representatives to actually work together to understand and give priority to the interests of each community? They might actually find that there are common interests and common goals in each community which can be appropriately addressed without someone winning and someone losing.

What if, in our families, when conflict arose, instead of becoming adversarial, we asked why?  Why are you so upset? What if we kept probing to find the source of the conflict – its root cause? When we see our partner verbally attacking us, instead of assuming we are the actual focus of the attack, we might find, if we ask, that the real focus is their own fear – fear of appearing inadequate, or perhaps of losing their job, or perhaps of being unloved. We might then respond very differently, once we understood. How many times have you started an argument only to find at the end, that there was far more to the conflict than, for example, just not doing your chores around the house? Were you able to get to the bottom of the conflict? If you were, you probably ended up, once the conflict was behind you, in a loving embrace, with true understanding and true forgiveness cementing your relationship once again. You also probably learned something about each other from the conflict and you probably learned that your decision to try and find the root of the conflict made you both better people, because you were able to gain greater understanding, greater empathy.

The governing of our nation and the governing of our family relationships should not be adversarial sports – can we find a way to eliminate this growing and rather frightening trend from our governments and from our families?

By: Thomas Dart, Partner

The post Politics and the Connection to FAMILY & ELDER LAW appeared first on Macdonald & Sager LLP .

Increasingly over the past 10-15 years the courts have been inundated with FAMILY & ELDER LAW cases.  This has caused a considerable backlog of court cases, generating needless delay and expense for separating couples attempting to resolve their FAMILY & ELDER LAW issues (child custody, child support, spousal support, property division, ownership & occupation of the matrimonial home, etc.).

This increased stress on the court system and the increasing cost of legal services for separating spouses has motivated those involved in the system to look for more cost effective alternatives.  These alternatives have included the provision of FAMILY & ELDER LAW legal information through various government websites, self-help group websites, programs put on by the Ministry of the Attorney General at courthouses through Toronto [called Mandatory Information Programs] and community agencies and organizations establishing educational programming for parents and the children going through the separation process.

One of the most popular alternatives to judicial dispute resolution that has attracted a lot of attention are the mediation initiatives that have sprung up around the province. However, just as with other consumer services there is an increasing need for the regulation of those holding themselves out as mediators or arbitrators.

There is little formal control over the quality or the credentials of those offering mediation services.  As a FAMILY & ELDER LAW lawyer it has been increasingly common to hear horror stories from clients complaining about the lack of clarity of resolutions achieved in mediation or that various topics or issues that should have been canvassed in mediation, were not. I have even seen separation agreements written by mediators who have performed the mediation in which they “assisted” the parties in achieving a resolution. Sometimes these separation agreements [or the supporting documentation with them] makes no mention of whether the parties have had an opportunity to receive independent legal advice throughout the process or before they have signed the separation agreement.

In the rush to save money, separating spouses often end up causing themselves further grief, stress, and expense when the need arises to interpret a clause of a poorly drafted agreement or to deal with an issue that was not contemplated in the agreement drafted by the mediator.

Family mediation has reached the point of general acceptance by the population and thus requires regulation – whether that be self-regulation or governmental regulation is the pressing issue for these service providers and for those receiving mediation services.

At the present time mediators providing services in Toronto within the family court system must have accreditation or certification. At present Family Mediation Canada, the Toronto Association of Family Mediation and the ADR Institute of Toronto Inc. have criteria by which they assess members who seek to provide family mediation services. There are requirements for specialized training and a minimum amount of relevant work experience. However, for those providing mediation services outside of the court system there are no similar requirements before hanging up a shingle as a mediator. While many FAMILY & ELDER LAW mediators are lawyers who therefore have professional qualifications through their law society there are others, such as social workers, clergy, etc. who offer services as FAMILY & ELDER LAW mediators who may or may not have the skill sets, education and training to provide quality services to a relatively vulnerable population going through an emotional stressful journey.

The FAMILY & ELDER LAW Lawyers at Macdonald & Sager LLP have been offering mediation and arbitration services on an informal basis for several years.  We are now formally offering Mediation and Arbitration services through ‘Macdonald & Sager LLP Resolution Services’.  Tom Dart, Kim Kieller, Doug Manning and Eric Macdonald have, among them, over 70 years of combined experience as FAMILY & ELDER LAW lawyers and over 25 years of experience as Mediators and Arbitrators sanctioned by the Toronto Association of Family Mediation and the Arbitration Institute of Toronto.  We bring a wealth of experience and creative problem-solving strategies to clients who wish to retain our services to act as Mediators or Arbitrators in their dispute or to represent them as their lawyer within the context of Mediation and Arbitration processes.

By Douglas J. Manning, Partner, Certified Specialist in FAMILY & ELDER LAW

The post Increasing the Accessibility to FAMILY & ELDER LAW Services appeared first on Macdonald & Sager LLP .