My friend’s child asked for advice on a upcoming child custody case. His parents are in family court and have trial in 2 months on child custody and access. He has a children’s lawyer, but afraid to tell her what he wants as he doesn’t want this information to be shared with parents – he is very afraid of their reaction. The lawyer does not keep things in private as promised. The child is in a much distress and wants to talk to a judge, but OCL is against it. The child is turning 13 in few months. I don’t know how to help him, I am very concerned about his state of mind. He is vey stressed and turns it against himself by having a very low view of his worth and his life worth. His OCL unfortunately does not see it and is convinced the child is OK. What would you advise to this child and is there any way I can help? If I talk to his parents he will loose trust in me as well.

This is an upsetting situation. However, the perspective on hearing from children is changing in Ontario Family Law. Many judges recognize children have a right to be heard in matters that affect them, provided it is the child who wants to be heard and not a parent trying to get the child to take sides.

Technically, a child does not have to be represented by the Office of the Children’s Lawyer. A child can retain a private lawyer to assist him or her. Judges views this with some scepticism unless it is clear the child was not “put up to it” by a parent. This means the child has to contact the lawyer himself, see the lawyer without a parent present and negotiate the retainer for that lawyer. That lawyer can than advice the court and the OCL that he or she is representing the child and the OCL is no longer doing so. The court (and the OCL) will likely want to explore the situation to ensure this was not a parent influencing the child. At some point, the child may have to say that he lost confidence in the OCL lawyer. That may take some fortitude, but so will putting a position before the court on his parent’s divorce. However, a child who does all of that to ensure he is heard by the court, will convince most judges to at least listen.

It sounds like you are being “neutral” in this situation, so it would likely be OK for you to assist the child in finding a lawyer.

Also, it is important to remember that a child expressing a point of view is NOT determinative of any issue. Even if a judge listens, the child will only be a witness, not the decision-maker. After listening, the judge may make a decision that is different from what the child wanted. However, often just knowing that the judge has heard his point of view is enough to get a child “on board” for any decision.

If you want to know the technicalities of the law in relation to courts listening to children, you can see if your local reference library or law library (often in the courthouse) has a copy of Wilson on Children and the Law. There is a long chapter on this issue. The book itself is several hundred dollars to purchase. So, you will need to find a good library to get a copy.

There is more about children in the family court process, how to navigate family court, and many other family law issues in this $20 easy-to-understand book on Family Law: Devry Basics Ontario Family Edition.

For further information or assistance in regards to child custody, child access or family law, please contact Toronto family lawyer John Schuman.

When employment litigation resolves in a wrongful dismissal settlement, an important issue for the employer and the employee is the tax considerations and how the settlement funds will be allocated. Employees should ensure that the settlement funds are allocated in order to minimize their tax liability. Employers may also be able to settle cases for less if they cooperate with employees in the allocation of the settlement funds.

There are many different ways in which the payments can be allocated, such as wages, retiring allowance, general damages and legal fees.

Any money allocated as wages will be subject to withholdings. The employer is required to withhold Canada Pension Plan (CPP) and Employment Insurance (EI) contributions, as well as income tax from settlement funds allocated as wages.

The Canada Revenue Agency (CRA) defines “retiring allowance” as “an amount paid to officers or employees when or after they retire from an office or employment in recognition of long service or for the loss of office or employment.” Significantly, the employee does not have to be retiring in the colloquial sense in order to be entitled to a retirement allowance. In other words, an employee who is terminated from one job and starts a new one shortly thereafter could still be entitled to a retiring allowance.

The employer is required to withhold money on retiring allowance payments at the following lump sum rates:

10% for amounts up to and including $5,000.00;
20% for amounts between $5,000.00 and $15,000.00; and
30% for amounts of $15,000.00 and over.

No withholdings are required for CPP, EI and income on retiring allowance payments.

General damages are monies awarded to a litigant as compensation for pain and suffering for bullying/harassment, breaches of human rights legislation and other torts. If settlement funds are allocated as general damages, and the payment relates to the loss of employment, it would be subject to withholdings at the lump sum rates. In other words, if the employee would not have been entitled to the payment but for the loss of employment, the money is subject to withholdings.

On the other hand, if a payment of general damages is made as compensation for events that are unrelated to the loss of employment, the money would be non-taxable.

Settlement funds allocated as legal fees are non-taxable. No withholdings are required and the employee will not pay tax on these amounts. This is dealt with in the Income Tax Act by way of an income inclusion and an offsetting deduction.

Please talk to one of our employment lawyers to review your tax considerations and legal options before accepting a wrongful dismissal settlement.

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Month: April 2013

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