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Archive for May, 2012

May 28th, 2012

This is a new era – people are voluntarily putting personal information on the Internet in order to share it with their “friends”. Through its many facelifts, Facebook has undergone a multitude of changes not only in its overall appearance, but in the accessibility of its users’ information. Facebook started with a primarily network-based approach, allowing those in the same network the ability to find out much about their peers and has moved to what is primarily a closed, friends-based network allowing only those you choose to access your information. The true extent of the privacy setting changes has been lost in the shuffle, and not all privacy modifications have been good. With the introduction of advertisements and third-party applications to Facebook, the door has been opened to many other privacy concerns – not only over who can view your information, but also who has access. And the once vague wording of the privacy policy is less than satisfactory.

So just how private is my Facebook page? In looking at the case of CIPPIC v Facebook and the issue of Facebook in the courts, one sees that with the ever-growing use and expansion of the social network, there is only so much the Privacy Commission can do, and in actuality your information is not that private.

CIPPIC v Facebook

In 2009, CIPPIC issued a complaint against Facebook regarding the accessibility and dissemination of users’ personal information, believed to be in contravention of PIPEDA. This complaint then went to the privacy commissioner for review. Although Facebook is an American company, Canada does have jurisdiction over this. The issue of outsourcing of personal data across borders was resolved in Lawson v Accusearch Inc and Law School Admission Council Investigation – resulting in the enforcement of the Processing Personal Data Across Borders Guidelines. Now, individuals can expect that their personal information is protected in Canada regardless of where it is processed.

The privacy commissioner found Facebook to be contravening Canadian laws on various issues, with the underlying theme being a lack of disclosure. Facebook was required to clearly disclose its intended uses of information – greater transparency was needed. This was somewhat revolutionary in the Facebook era, as it was the first time any government found Facebook in direct violation of its laws. Go Canada!

CIPPIC proposed twelve violations, of which the privacy commissioner found eight to be well-founded. Facebook agreed to comply with most of them, but disagreed with four. The privacy commissioner then gave Facebook 30 days to respond again, and Facebook eventually agreed to a compromise.

Overall, more transparency was demanded of Facebook. Facebook edited the terms of service and the privacy terms and made them acceptable to the privacy commissioner. Facebook’s negotiations with the privacy commissioner gave worldwide Facebook users better protection over their personal information. In December 2009, Facebook bettered its privacy by limiting the categories that could not be protected from seven to four: name, profile photo, gender, and networks. Still, this will hardly be satisfactory forever. In October 2010, for example, the Wall Street Journal disclosed that apps had been transmitting unique Facebook ID numbers to advertising and data firms who build intimate profiles of users by tracking the online activities.

Facebook and the Courts

With this advancing information-sharing platform, it is not surprising that the courts are looking to Facebook to gain insight as to the truth of a statement. Generally, determinations on Facebook profile disclosure are being made on a case-by-case basis, but it is not at all out of the question. The test for the relevance of the data involves weighing the probative value of disclosing the info from a social networking site versus its prejudicial effect.

In Leduc v Roman, the Ontario Supreme Court made an order permitting the cross examination on a Facebook profile. While open profiles had been disclosed in the discovery stages of a trial, it was not until Murphy v Perger and Leduc v Roman that the courts extended discoverability to a limited access Facebook profile by inferring the likely existence of relevant documents.

The moral of the story: don’t put anything incriminating on Facebook. Do not put anything private on Facebook. It is not as private as you think. And, as shown, there is only so much the privacy commission can do.

Landlord Tenant Board and Privacy: Who Are We Protecting?

May 23rd, 2012

There was an article recently in the Toronto Star with the catchy title, ‘Tenant from hell leaves a string of landlord victims’. Generally speaking, we tend to hear more about nightmare landlords who take advantage of tenants by raising rent, refusing to do repairs, or subjecting their tenants to unsafe and uninhabitable conditions. This article, however, shed a new angle on the ongoing housing battle regarding privacy protection laws and how these restrictive laws are potentially harmful to landlords.

Previously, a landlord who wanted to find out the rental history of a potential tenant, such as previous board decisions or the amount of rent that may be outstanding to previous landlords, could ask the Landlord and Tenant Board for the files on that tenant. The Office of the Information and Privacy Commission has since ruled, however, that this is a breach of an individual’s privacy. Under the new guidelines, only persons that are party to an application may access the board file. Those who are not party to an application must apply under The Freedom of Information and Protection of Privacy Act (FIPPA) for access.

FIPPA has two main objectives. The first is to provide the public with access information under the control of a government institution. The second is to protect the privacy of individuals. FIPPA prevents the release of personal information, which includes information such as an individual’s name, address and any financial transactions with which the individual was involved. What this means for landlords, is that existing Board files are prohibited from release because of the personal nature of the information that they contain. Rental histories from previous Landlord and Tenant Board files are out of reach.

The question here is whether in protecting the privacy rights of individuals, FIPPA has prevented landlords from taking measures to protect themselves from deceitful tenants with past records of defaulting on rent payments or of damaging rental properties. According to section 10 of the Residential Tenancies Act, a landlord is entitled to request past rental history from a potential tenant, but there is no way in which a landlord can confirm the validity of the record. This allows a tenant more freedom to lie about past history, since the landlord cannot access the files to prove otherwise.

Proponents of the privacy measures can just as easily argue that a tenant could change their ways, and that one bad landlord/tenant relationship should not prevent a tenant from moving forward to happy and mutually beneficial landlord/tenant relationships in the future. The argument that a landlord’s access to these files could make finding suitable accommodations extremely difficult for a reformed tenant has equal merit in this standoff.

Depending on what side you sit on, these rules could mean considerable benefit, or could open you up to potential trouble. As the debate continues, the one clear point is that both landlords and tenants have inherent risks in rental agreements, and should be careful about the people with whom they do business. For further information, please contact one of the lawyers at DSF.

Child Support 101

May 22nd, 2012

“Do I have to pay child support?” This is a question family lawyers hear almost every day. The short answer is yes, parents have a legal responsibility to financially support their children. Child support itself, however, is paid by the parent who does not have day-to-day care of the child to assist the other parent who provides the day-to-day care to the child and thus carries the associated costs.

The amount of child support you will have to pay is calculated using the Child Support Guidelines, which solely uses the amount you earn and the number of children for whom you are paying support. The income level of the other parent (aka the recipient) is irrelevant to determining the basic amount you will owe. Go to http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/legis/fcsg-lfpae/2011/index.html to see the table of figures and find your ballpark amount.

This figure, however, is not final and you may have to pay more. Special expenses, such as daycare, medical expenses, private school, post-secondary education, etc., are not included. These are added to the amount and are shared by you and your spouse in proportion with your incomes.

These Tables in the Guidelines, however, assume that the child spends the majority of his or her time with the parent who is receiving the child support. You may be able to reduce the amount of child support you owe, if you have “shared” parenting. Under section 9 of the Child Support Guidelines, an exception to the standard calculation of child support is permitted when the child spends over 40% of their time with each parent. The appropriate amount of support is then determined based on what each parent is or should be paying on the children’s expenses. You should note, however, that time spent in school, away on holidays, with friends does not count as time taken away from the custodial parent.

For more information, please contact one of the family lawyers at DSF.

If you care about your public image, Family Court is not for you

May 17th, 2012

One of the things people in court frequently forget is that everything filed and said in court, as well as all of the judge’s decisions, are public record. Anyone can walk into a court in Ontario (except for child protection proceedings or where there is a specific order) and sit and listen to the proceedings or go to the counter, get a court file and read all of its contents. People don’t even have to go to the court to read the judge’s decisions as many of them are posted on the court’s websites or on CanLii. What happens in court is very public and it is out of the control of the parties to a proceeding. People who want to control their image may want to choose to resolve their disputes in mediation, arbitration, or collaborative practice, which are all private (unless one of the parties appeals the result to a court).

There are an abundance of examples where the public nature of the court has come back to haunt people who went to Family Court. One recent example is that of a person who submitted a application in the United States. The people considering that application did an internet search and found a court decision in relation to the applicant. Unfortunately, the judge who heard the matter, and made the decisions, believed that the applicant had deliberately deceived the court and otherwise behaved badly. Those decisions hurt the applicant badly, again. The applicant wanted the court decisions removed from the internet, but court decisions are public documents and the public is entitled to access them.

Another example relates to a contractor who had not been completely honest in reporting his income (much of it cash) to the Canada Revenue Agency. The opposing party’s lawyer, John Schuman, had done an effective investigation of that contractor’s bank accounts and found that the spending did not match the reported income. The contractor made the mistake of denying the obvious and forcing a motion in court on the issue of support. That motion required a detailed calculation of the contractor’s bank accounts and spending be filed with the court. The contractor lost the motion. But worse, the CRA had developed an interest in the contractor’s true income. An agent went to the court, looked at the court file, and used the information in it to go after the contractor for tax evasion. Apparently, it is not uncommon for the CRA to check the contents of court files.

It is important to consider the consequences of going to court. The parties cannot control whether the judge will like them. A bad, publicly available decision, can impugn a parties character for a long time. Courts can also be a very bad place for people whose financial records are not the best as the opposing lawyer, or the judge, may highlight those problems and make the taxman’s job easy. These are good reasons for parties to consider alternative dispute resolution to keep their personal lives and finances private.

The Down Sides of the Court Process

May 9th, 2012

Quite often, I have clients who say to me, “I want my day in court”. While entering the court process is sometimes the only way to try to resolve a family law dispute, it is usually the most financially expensive, the most emotionally draining (particularly if children are involved), and more often than not, takes the longest amount of time to achieve any resolution, either by settlement or once a court order is made. While many clients seem to believe that going to court will solve all of their problems, the reality is that in a great number of cases, clients are disappointed with the process.

Why is court so expensive?

Typically, lawyers initially try to come to an interim agreement for their clients outside of the court process. Often, a great deal of time (and therefore, money), has been spent leading up to the commencement of any court process. Once negotiations break down, as they often do, and a client decides that he or she would like to go to court, the drafting of numerous court documents begins. These documents are the first documents a judge will usually see and must be drafted persuasively and with precision. Throughout the court process, many other documents will be drafted, including conference briefs and sometimes, affidavits for motions. At each step of the litigation, documents must be served on the opposing party or his or her lawyer and filed with the court. In many cases, there are additional fees associated with this. Once the day finally comes when the parties attend at court, they will be paying for their lawyers’ travel time and waiting time. Depending on the court, they may have to wait all day, and in some cases, may not even see a judge. Meanwhile, they will be paying their lawyers’ hourly rates during this wait time, as it is difficult for a lawyer to do any other work for another client when they are at court.

Why is court emotionally draining?

I have never met a client who has not said to me that he or she is nervous before a court appearance. The anxieties and concerns that come with having a judge offer guidelines or provide a decision that directly affects one’s family, is a terrifying experience for most people. In many cases, my clients have not seen or spoken to their ex-partner for many weeks or even months, and are then forced to come face-to-face in an unfamiliar and usually adversarial environment. This also creates anxiety, anger and, sometimes, fear. In cases where children are involved, the stakes are even higher and therefore, emotions are heightened. The sense of losing control to a third party judge can easily affect a person’s ability to cope well in this process.

Why does it take so long to reach a resolution in the court process?

There are hundreds of governing rules that apply once a client decides to enter into the court process. These rules consist of specific timelines and procedures for filing documents and attending at court. Before a party can be heard by a judge, these procedures and timelines must be met. In addition, there is a significant backlog in many Ontario courts, thus taking several months before a date can be scheduled. As there are many steps that must be followed before a trial, every step of the process typically requires a period of three to six months before the next step can occur, making it years, usually, before a trial occurs.

As I indicated previously, in many situations, it is necessary to go to court. However, for those clients who simply want to “have their day in court”, they may want to re-think their beliefs (or, in an ideal world, go observe a day in family court to see what actually happens!), as they will likely face a great deal of financial and emotional stress along the way that may not be worth it to them.