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.

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.