Law Times

Law Times • June 22, 2009 NEWS PAGE 3 Bentley: family law review process lifting off O BY GLENN KAUTH Law Times ntario's family law practitioners can ex- pect a "faster and more affordable" system to result from a review process that will get underway within months, Attorney General Chris Bentley has promised. "The goal really of this and any other justice system is to be fair . . . but to deliver that fairness in a way that works for the peo- ple of Ontario," he told an audi- ence at the Law Society of Upper Canada's family law summit in Toronto earlier this month. "We've received a lot of advice," Bentley good said, noting delays and costs in the family law system have been a constant source of complaint not only from lawyers but also from the general public. "In every jurisdiction, peo- ple want to talk to me about family law." But exactly what is to come is unclear. What will happen is a review process to be for- mulated soon that will inform the changes. That will likely result in new laws, rules, or regulations aimed at speed- ing up the system, but so far Bentley says he's not sure what they will look like. Asked if he hadn't about already heard enough what's needed from lawyers, Bentley tells Law Times there is still more work to do. "I want to make sure we do this right," he says, adding he wants to make sure people he hasn't yet heard from have a chance to have their say. For London lawyer Alfred Mamo, the review is a good idea but he hopes the process will be short given that, he says, the an- swers are largely already known. "I'm hoping that we do not have an extensive review," he says. Mamo, who himself helped write a report on improving the family law system, adds that his work along with a recent re- view of the civil justice system by former associate chief justice Coulter Osborne mean a new process shouldn't require a lot of fact finding. "I think what we need is for somebody to put it together . . . Let's go about doing it. I think it's time for action." But while Bentley says he doesn't know what the outcome will be, he suggested enhancing legal options such as mediation and collaborative family law as one way of speeding up the system. For Mamo, that's good news, especially as the justice system begins to grapple with a centres that help people navigate the system and, most important- ly, get referrals to outside agen- cies providing legal assistance. In that way, mandatory case conferences with judges would be more meaningful rather than create delays as parties show up unprepared, Mamo hopes. The goal, Mamo adds, Attorney General Chris Bentley barrage of requests to vary spou- sal support due to job losses. Already, courts in two hard-hit cities, Oshawa and Windsor, are planning pilot projects to enhance mediation in response to that trend, he notes. But what's key, Mamo ar- gues, are improvements to help the increasing number of self- represented litigants who forego paying for a lawyer. The prob- lem is that few of them come to court with the proper docu- ments and disclosure, meaning the system gets backlogged with repeated adjournments. So, he would like to see improvements to family law information should be to move standard cases through the system more quickly in order to free up court time for the more con- tentious ones. It's a sentiment echoed by Court of Appeal Jus- tice Gloria Epstein, who spoke at the family law summit about the family rules committee she sits on. "It's simply not possible to devise the perfect set of rules that will work perfectly in every circumstance," she said, noting she too, acknowledges the need to make the system more effi- cient and accessible. For Mamo, then, the idea would be for judges to have discretion to deal with those exceptional cases. At the same time, he says that expanding mandatory mediation, some- thing the province has other- wise signalled it isn't planning to do, can help the courts deal with cases more effectively. Bentley, meanwhile, told the family law summit his goal is for the changes to be in place by next year so that rather than talk about the need for change, the discus- sions will be about "the renewal itself." He also briefly discussed legal aid, a hot topic he said ap- plies not only to the criminal jus- tice system but to family law, too. Still, while he insists he's passion- ate about the issue, he steered clear of any specific promises to boost funding. He added as well that enriching the system signifi- cantly wouldn't necessarily fix the problems in family law since "you still wouldn't have a system that is as fast as it needed to be, and we don't have the money to do that anyway." Besides the planned review, Bentley mentioned the family law reforms that took effect recently as a result of Bill 134. They included changes to pro- visions dealing with issues such as pensions, restraining orders, and child custody, all of which Mamo says have generally been positive and necessary. But now, he argues, it's time for the government to "adopt the Nike model, and just do it" on the procedural questions. "I think that frankly to most consumers of family law services, the substantive law is not as important as the process," he says. LT Appeal court sides with lawyer in fraud dispute BY ROBERT TODD Law Times T he Ontario Court of Appeal has sided with a lawyer who successful- ly sued a bank after it cashed a $429,000 cheque drawn from his trust account for a client who was duped into a fraudu- lent house purchase. "I guess the lesson is that ev- eryone needs to be extra vigi- lant," says Martin Sclisizzi, Bor- den Ladner Gervais LLP partner and counsel for real estate lawyer Satwant Singh Khosla. "It used to be that you could count on a cheque being good. Now you almost have to count on a cheque being bad. It's sad to say, but I think that's the reality of it." The appeal court agreed with Superior Court Justice Frances Kiteley, who in November 2008 ruled in favour of a summary- judgment motion from Khosla. In March 2006, Paul Revic- zky — who was 88 years old at the time — rented a home to a fraudster, according to Kiteley's November 2008 decision in Khosla v. Korea Exchange Bank of Canada. In April 2006, the fraudster posed as one of Revic- zky's family members and listed the property for sale through an illegal power of attorney. The fraudster accepted a pur- chase offer from an individual represented by Khosla, according to Kiteley. The transaction closed in May 2006, with HSBC Bank Canada advancing funds loaned by the purchaser to Khosla, who put the funds into his trust ac- count at Royal Bank of Canada. Khosla then made a cheque payable to Reviczky for $429, 481, certified by RBC. A month earlier, the fraud- ster had opened an account at the Korea Exchange Bank of Canada under the name "Aaron Paul Reviczky," Kiteley wrote. The fraudster forged Reviczky's signature and deposited the cheque into that account, and withdrew the money before the fraud was uncovered. Khosla later issued a statement of claim that alleged KEBOC was liable for damages of $429,481 for conversion after "collecting the cheque on a forged and unauthor- ized endorsement," said Kiteley. The judge sided with Khosla, stating, "Even if I accept for pur- poses of the motion that Kho- sla was in a better position than KEBOC to detect the fraud and that KEBOC exercised due dili- gence, KEBOC's defences to the claim for conversion cannot suc- ceed. KEBOC is strictly liable to Khosla for conversion." The bank appealed that de- cision, arguing that Khosla was "in a better position to detect and prevent the fraud than the appellant bank, even though the respondent knew nothing of the fraud and even if he was not negligent," according to the Court of Appeal decision of Jus- tices Stephen Goudge, Eileen Gillese, and David Watt. The appeal court ruled against all of the bank's arguments, and said the matter was "exactly" the same as the 1996 case Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce. "In that case, the Supreme Court of Canada made clear that where a bank receives a cheque on which the payee's endorsement has been forged and then collects it and pays out the proceeds to someone not rightfully entitled to possession of it, the collecting bank converts the cheque and is liable in tort to the drawer." KEBOC's lawyer, Avrum Slodovnick of Solmon Rothbart Goodman LLP, says the bank is considering the option of seek- ing leave to appeal at the Su- preme Court of Canada. LT When it comes to IP in Canada, We're Well Read Ridout & Maybee LLP: Editors of the Canadian Patent Reporter it all starts somewhere www.ridoutmaybee.com www.lawtimesnews.com Ridout_LT_Feb9-16_09.indd 1 2/5/09 10:52:55 AM

• Cover
• Review Process
• A Criminal Mind
• Focus On Family Law