Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2010 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. OcTOber 4, 2010 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guar- anteed. Contact Jacquie Clancy at: jclancy@ clbmedia.ca or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Allowing cities to license rental housing L andlords in London, Ont., are up in arms over the city's plans to re- quire licences for rental units. It's an issue several municipalities have struggled with, particularly given the fact that measures aimed at dealing with substandard rental properties often target student housing. As a result, they then find themselves dealing with allega- tions of discrimination against students, an issue the City of Oshawa has faced in its attempts to handle problems in neighbourhoods near the University of Ontario Institute of Technology. It's one thing when claims of discrimi- nation come from the students them- selves, but it's another when they're from an organization like the London Property Management Association, which claims the bylaw requiring a $25 fee for a licence amounts to discrimination on the basis of age and marital status given its alleged pur- pose, according to the association's recent Superior Court application challenging the new regime, "of discouraging and/or preventing occupancy of rental housing by students attending post-secondary educational institutions." "The bylaw also discriminates in ac- commodation on the basis of receipt of public assistance inasmuch as it elimi- nates affordable rental housing units from available rental housing stock in the city of London." It all sounds a little self-serving given that the association is arguing for the rights of people the bylaw it's oppos- ing aims to protect. The same goes for its claims that rules forcing landlords to post information about individual prop- erty owners in rental units violate pri- vacy legislation and expose "individual property owners and their families to significant threats of personal safety." The complaints are a bit much given that the licensing regime is fairly benign. The $25 fee is relatively cheap and, given that all it asks landlords to do is fill out a checklist that they must share with their tenants and the city, the requirements aren't particularly onerous. It's hard to be- lieve they would have a significantly det- rimental effect on housing supply. At the same time, applying the bylaw to proper- ties with four units or less means it's likely to overcome any discrimination claims. The association may have more luck with its argument that the bylaw, which allows the city to refuse or revoke licences to landlords, conflicts with the province's Residential Tenancies Act. According to its court submission, landlords can't evict someone except under provisions of the provincial legislation, which doesn't au- thorize ending a tenancy for failing to possess a municipal licence. But if that turns out to be the case, perhaps it's time to change the provin- cial law. Municipal licensing bylaws, particularly those as lenient as this one, are a reasonable way of ensuring decent rental housing. At a time when provin- cial politicians are considering proposals to protect tenants from bedbugs, they could take a stab at this issue as well. — Glenn Kauth Q Steine case shows pitfalls of incomplete agreements Family uite often during the course of a family law proceeding, the par- ties reach settlements at case or settlement conferences with handwritten minutes drawn up by the lawyers and the litigants in courthouse hallways. Most of the time, the dispute ends quick- ly once they become orders. Sometimes, however, things don't go smoothly. Such was the case in Steine v. Steine in a deci- sion by Superior Court Justice Gregory Mulligan. After the parties had been sep- arated for some time, Lori Steine commenced an application. Fol- lowing completion of pleadings and disclosure, they attended a case conference. A 6 1/2-hour negotiation ensued at the court- house that led to an agreement on all issues, including equaliza- tion and support, which both parties and their lawyers signed. One of the clauses in the agree- ment specified that formal min- utes would include final releases and standard terms pursuant to the Law Society of Upper Cana- da's "green book." Negotiations ended at 6:30 p.m. I surmise that facilities with photocopiers were by then unavailable and that only counsel for the husband, Ter- rance Daniel Steine, retained a copy of the minutes while promising to provide one to the opposing side the next day and prepare a draft final order. It seems simple enough, but that's not what happened. Two months went by without agreement as to the language of the final order. What's most sur- prising is that Terrance's counsel appears to not have provided a full copy of the courthouse minutes to the opposing side for quite some time, including after providing a draft order for review. The unfortunate part of all of this is that the funds, including lump-sum spousal support pay- able to Lori, remained with the parties' real estate lawyers pend- ing agreement on the final terms. Because the settlement involved lump-sum rather than monthly periodic support, Terrance also terminated his prior voluntary payments to Lori, who for vari- ous medical reasons was only able to earn an income of about $900 per month. Terrance's income was more than 10 times that Law By Marta Siemiarczuk at just over $9,000 per month. In the meantime, his lawyer denied requests for even partial distribution of the proceeds. Un- derstandably, Lori became very upset. By this past April, three months after the case conference and still having no funds, she re- tained new counsel. By then, she started a motion for summary judgment and simultaneously filed a cross motion to set aside the courthouse minutes and for interim support. The basis for her motion to set aside the minutes included duress and a lack of comprehen- sion of the implications of what she had agreed to that day, as well as allegations that her for- mer husband had failed to dis- close income and assets. Mul- ligan made short work of those allegations primarily because neither she nor her counsel had made any claims about non- www.lawtimesnews.com disclosure or that the minutes were somehow unconscionable prior to that, specifically as they related to lump-sum sup- port and a subsequent release from Terrance. In reading the case, what becomes very clear is that Lori, at the end of her rope at not having finality or any money in her hands, had changed her mind about the agreement. Ul- timately, her husband was suc- cessful in obtaining summary judgment. However, recognizing the se- rious impact the protracted ne- gotiations of terms and lack of continued interim payments had on Lori, Mulligan made an order in her favour for arrears of spou- sal support retroactive to January of this year that totalled about $20,000. Of note are Mulligan's comments on the issue of costs, which Terrance then sought. Spe- cifically, the judge ordered that his submissions were to include an explanation of why he didn't continue his voluntary pay- ments of spousal support during the continued negotiations of the terms of the final order and why he didn't agree to the partial release of the proceeds of sale of the matrimonial home. Based on these comments, it's clear that Mulligan was less than impressed with the hardship that Lori suf- fered after the case conference. Courthouse settlements, which both counsel and the ju- diciary encourage, are extremely common in family law. How- ever, we as lawyers have to be careful as to how we craft those agreements. I think that where this case really fell off the rails is with the earlier noted term that the formal minutes will include standard LSUC clauses. As law- yers, our job is to be picky about what does and doesn't go into agreements, and leaving certain things unsaid on the assumption that there will be little disagree- ment as to what's appropriate and standard later on is simply a recipe for complications as it so clearly was in this case. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Kathleen Chapman & Associ- ates in London, Ont. Marta can be reached at msiemiarczuk@ gmail.com.

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