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Common Law Spouses, your Property and the Law?

May 23rd, 2013

Question:

If a friend lives with me for many years, could s/he claim that s/he is my common law spouse and, as a result, be entitled to half my property?

Answer:

There are two questions that need to be answered in order to properly respond:

What is a common law spouse?

If I have a common law spouse, is my s/he entitled to half of my property?

Whether or not a person is in a common law relationship is a question of fact that needs to be answered prior to determining one’s rights and obligations in a relationship. In Ontario, what is referred to as a “common law” relationship is defined by section 29 of the Family Law Act. It is defined as a relationship in which two people, who are not married to each other, cohabit continuously for a period of not less than three years; or are in a relationship of some permanence if they are the natural or adoptive parents of a child.

If there are no children involved, simply living under the same roof with a friend, in a platonic relationship, for three years or more would not trigger the obligations, which arise between common law spouses. The case of Stephen v. Stawecki is instructive and provides that the entirety of the couple’s circumstances must be taken into account. There must be an demonstrated intention to actually be in a conjugal relationship and you must hold oneself out as being in that relationship with the other person. If you have attended gatherings with family and friends as “a couple”; if you share finances; if you cook and meet for your meals together; if you discuss moving forward in your life together as a couple for a period of three years or more, then there may be cause to consider whether you are in a common law relationship. If this is the case, you should contact a lawyer to discuss your possible rights and obligations. However, simply with a roommate, without these other indicia of a conjugal relationship, is likely not sufficient to trigger the obligations which arise between common law spouses.

This said, even if you are in a common law relationship, the statutes do not permit a right to share in the possession or value of property of the other spouse in the way that is associated with legally married spouses. Common law spouses do not have a “matrimonial home”; they do not have the right to share in the increase of your RRSP’s, pensions or investments. To learn more about “matrimonial home” watch this video. This said, they can make a complex legal argument that they are entitled to share in the increase in the value of a particular asset if they can show that you were “unjustly enriched” by the increase in value, due to their direct and substantial contribution to your asset. A successful claim of this sort is the exception and not the rule.

Common law spouses may have the right to spousal support, however, the entitlement to spousal support is made on a case-by-case basis, considering the length and nature of the relationship, as well as the means and needs of each spouse. To read our blogs on spousal support click here.

If you are concerned that you may be in a situation which may trigger the right to spousal support, or a claim for unjust enrichment due to your spouse’s contribution to an asset, you should consult with a Family Lawyer as there are ways, such as negotiating a cohabitation agreement, which may help protect you in such circumstances.

For more information on Common Law Spouses and Relationships, or if you need a Toronto Family Lawyer, please contact one of our Toronto Family Lawyers at Devry Smith Frank at Toronto Family Lawyers.

The Dangers of “Reply-All”

May 21st, 2013

This blog is written by our law summer student, Ira Marcovitch.

For any of us whose job or life involves a healthy amount of e-mailing, it’s the button we love to hate: the sometimes-useful-but-more-often-mistakenly-used “reply all” button. More often than not, the result is harmless; we mistakenly send a personal email to a co-worker, or mistakenly receive something similar. But what happens when you receive an email from your boss that was not only not meant for your eyes, but discussed whether or not you should be fired? Enter Maria Fernandes.

In March 2011, Ms. Fernandes, then Director of Client Services at Marketforce Inc., received an e-mail that her boss had intended for the company’s lawyers. The contents of the email were pretty straightforward, and damaging. It was a request for advice from the lawyers as to how Ms. Fernandes could be let go from the company. Documents filed in the Ontario Superior Court allege that Linda Guerin, Ms. Fernandes’ boss, immediately realized her mistake and, like many of us, immediately tried to rectify it. She sent three recall notices and finally sent Fernandes an email asking her to delete the unintended delivery without reading it. However, Ms. Fernandes did read the e-mail, and treated its contents as a constructive dismissal. Like anyone would, Ms. Fernandes copied the email and contacted a lawyer. And like anyone would, she went on vacation. Upon her return, she informed the company that she considered herself fired by email, and shortly after commenced a wrongful dismissal claim.
wrongful-dismissal-claims

While the case has yet to be decided, the company brought a motion for a declaration that the email was protected by solicitor-client privilege and that Ms. Fernandes could not rely on it in her claim. The motions judge, with whom an appeals judge agreed, found that the email was privileged and that its inadvertent disclosure did not amount to a waiver of that privilege.

Nonetheless, the judge decided that it would be unfair, both to Ms. Fernandes and to the judge who would eventually hear the case, to exclude the e-mail. He determined that the trial judge would have to determine whether Ms. Fernandes acted reasonably in treating the email as constructive dismissal and that, without the email, he could only rely on second-hand inferences from Ms. Fernandes’ behaviour. The interests of justice and fairness, he determined, would be best served by having the judge have access to the email. While the judge realized the unfairness that may befall the company by allowing the email in, he noted that while unfortunate, it was their own mistake that created the whole mess.

While the eventual decision will have implications as to what can constitute constructive dismissal, and whether Ms. Fernandes was right to treat the errant email as akin to a pink slip, the story so far contains some equally important lessons. Foremost, as we all know, the “reply all” button can have serious consequences; while they range from the mildly embarrassing email you mistakenly sent your boss about your weekend, to the devastating e-mail he or she mistakenly sent to you about your termination, we should all take an extra second before we click ‘send’ on our next email. Secondly, this case raises an important point about privilege.

Should an email be excluded from protection because the party mistakenly sent it and the recipient party relied on it in commencing litigation against the former? The judge had noted that the boss had taken all reasonable steps to preserve the confidentiality of the email and that the privilege itself remained intact; so why should they be penalized because the steps taken were for naught? Further he determined that the contents of the email could be introduced into court without introducing the email itself, namely by questioning witnesses, which makes the disclosure seems more convenient for the interests of justice rather than necessary. Regardless, I’m sure we will wait with bated breath for the determination of the case; but in the mean time I know I will check twice before I next hit ‘send.’

For the appeal decision of the motion: click here.

Do You Need An Emergency Temporary Custody Order?

May 16th, 2013

Question: How do I go about getting an emergency temporary custody order for my son?

Answer: Provided by our Toronto Family Lawyer John Schuman

The first question you have to ask is whether you need an emergency temporary custody order. Judges do not like making custody orders, especially on incomplete evidence and on rushed basis unless the order is necessary to protect the health and welfare of the child. If the order is not necessary to do that, then the judge will want you to have a case conference first. Of course, that is if you really need to be in court. There are alternatives to court that are often better able to address children’s issues than court, unless there are issues of abuse, mental health, substance abuse or a very difficult parent. You can learn more about the alternatives to court in this video: Do I have To Go To Court For A Divorce.

Emergency Temporary Custody Orders in Toronto
If you do have to go to court, there a large number of things you must do, and correctly. Your best chance to get this right, and avoid having a judge refuse your request, is to get a lawyer to help you. (For more reasons why you should hire a lawyer, see this webpage Why Do You Need A Family Law Lawyer. If you cannot hire a lawyer, you should get a copy of this $20 book on the basics of Family Law, which describes the Family Court Process and custody access issue, to help you: Devry Basics Ontario Family Edition. However, if that is not possible, here is the information about how to get the Order:

First you should understand the legal meaning of the term “custody.” It may be different than you think. Read this webpage for more info: What Does The Term Custody Of A Child Mean?
You must file a Form 8 Application General that sets out all the orders you want the court to make and the facts that give the court the legal authority to make those orders. There are certain facts that are important when judges decide any parenting issue, including custody, and many facts that judges do not care about. It is important to put the right facts in your Application, and in your affidavits, so read this webpage: How Do Judges Decide Which Parent Gegts Custody Of A Child?. They both explain how judges decide who gets custody.
Since you are claiming custody, you must also complete, and swear or affirm before a commissioner of oaths (these are in law offices and at the court), a Form 35.1 Affidavit which sets out several facts that judges want to know regarding parenting.
If you are asking for any form of support you must also complete a Form 13 Financial statement (again this has to be sworn or affirmed). If you are asking for support and making property claims, you have to fill out a form 13.1 Financial Statement. (Note that only the Superior Court of Justice has jurisdiction to deal with property claims.) Your financial statement must attach 3 years of Notices of Assessment from the Canada Revenue Agency. If you do not have them, you must get them through the CRA’s website: My Account.
You have to take all of the above documents to the court to have them “issued.” The court will not allow you to issue the documents if there are errors or they are incomplete.
You must create a continuing record volume for the court. For information about doing that, see this link: Formal Requirements.
At the time that you are issuing your Application, you should ask the court for when you can have a case conference. You should book the first date. The court will give you a Conference Notice, that you must add to all the other documents.
After issuing the documents, you must have someone, other than you, serve the documents on your spouse and anyone else who can claim to have been an active parent of the child. Service usually means identifying the person being served and a handing them the documents to be served. The person must complete a affidavit of service, attesting that he or she served the documents properly (another commissioned document). Then you must file the documents with the court.
After all of that, you must bring a motion for temporary custody. Unless there is a compelling reason why the other parent(s) should not be served with your motion material (because they would do something bad to the child before the court had an opportunity to hear the motion) you must give them at least 4 business days notice. To get a court date, you have to go to the family court service counter and ask what dates the court has available to hear your motion.
You must first complete a Form 14 Notice of Motion that sets out the precise order you are asking the court to make.
You must also write, and swear, a Form 14A affidavit that sets out your version of the facts. (Refer to the podcast and website listed above to know what facts are important.) As you have to swear or affirm that the document is true, it is very important that the facts be accurate. It is also important that the affidavit is written in a way that is clear and compelling to a judge. To hear about what judges consider good parenting, listen to this podcast: The Voice Of A Child. The affidavit must also make it clear why you cannot wait to until the court can have a case conference to discuss the issues on your motion. One thing you must include is when the first case conference date is available from the court and also The affidavit is your “evidence” on the motion. You do not get to tell the judge any additional facts on the hearing of the motion. The motion is not a trial, so no one testifies in court. All the facts that the judge needs must be in the affidavits.
If you want other people to give their evidence on your motion, they have to swear their own affidavits.
You must serve the Notice of Motion and all of the other affidavits on the other parties that you have named in your Application. Unless you are trying to bring your motion without notice to the other parties, you must serve them at least 4 days before.
The other parties in your court proceeding have the right to file their own affidavit in response to yours. After they do that, you have the right to file an affidavit that responds to the new facts or issues in the other party’s affidavits. However, you cannot raise any new issues in your “reply affidavit.”
Two days before the set motion date, before 2:00 p.m., you must file a form 14C to tell the court and the judge whether your motion is going ahead as scheduled or not. Most courts let you file your 14C by faxing it to a special fax number, but the 14C is the ONLY document you can file that way.
Then you show up on the day of the motion and you explain to the judge why the law says you should get your emergency temporary custody order (and why you could not wait for the case conference). The judge usually will have had the opportunity to read all the affidavits, so you will only want to mention the most important facts and tell the judge where to read about them in all the materials that were filed (using specific tab and page numbers if possible). Keep in mind that motions are supposed to be argued in less than an hour total. So, you should plan on speaking to the judge for no more than 20 minutes at first. That includes the time that the judge asks you questions. The other party will get about the same amount of time. Then you will get to speak to the judge about any new facts or issues that the other party spoke about that you did not mention in your first twenty minutes. However, this is not a time to repeat your points. The judge’s time is precious and there are a likely other cases waiting. So you do not want to be repetitive, or do anything else to upset the judge.
The judge will then either decide your case on the spot, or “reserve” which means the judge will decide the case later and send a written decision to you. The decision is different from a formal court order. If you need a formal court order, that is another process… which can the topic of another post. Or you read about it in the book that I mentioned above.
If the judge decides against you, or decides the motion could have waited until after a case conference, then the judge will likely order you to pay the legal fees and other costs of the other party. This is where not using a lawyer can really cost you. If you do not get your own lawyer, you can end up paying the cost of your ex-spouse’s lawyer if you lose.

All the court forms are found here: Ontario Court Forms. Also, I did not quote the precise rules that set out all of the above, but you can find the Family Law Rules here English Elaws.

Again, the process for bringing an urgent motion is a complicated one, and you have to tell the judge the right things. So, you should consult a good family lawyer and get a copy of this $20 book Devry Basics Ontario Family Edition on family law that covers all of this in more detail. . For further information or assistance with a legal matter regarding Family Law & Emergency Temporary Custody Orders, contact one of the Toronto Family Law Lawyers listed on the left by clicking on their name.

How Step Parents And Grandparents Can Have To Pay Child Support

May 8th, 2013

How Step Parents And Grandparents Can Have To Pay Child Support

Parents and even Grandparents can find themselves on the hook for child support in Canada. This is episode of the Ontario Family Law Podcast explains how that happens. The basic premise of child support is that it is paid by all parents to a child. But, a child can have more than two parents. When parents or step parents step into the role of parents, they may step into paying child support. This podcast explains how judges decide whether someone is now a parent to a child and should pay child support. John Schuman also discusses how much support a step parent may have to pay when the biological parent in the picture and when biological parent is gone.

How Step-Parents and Grandparents Can Be On the Hook for Child Support

If you are becoming close to someone else’s children, or even your own grandchildren, you should listen to this podcast to findout whether you are putting yourself on the hook for child support.

Do Judges Care What Children Want In Child Custody Cases?

May 7th, 2013

Do Judges Care What Children Wants In Child Custody Cases?
I have a court appointed psychologist report recommending 1/2 custody, I applied for a motion and the judge announced we must go to trial, but I have no money to. Can a child of 13 yrs apply to court for her chosen custody?

In Child Custody Cases, custody and access assessments are not binding on judges. That means judges do not have to follow them. The report is only one piece of evidence, and the psychologist is only witness at a trial. The judge has to consider everything. For all the factors that a judge has to consider read this webpage: How do judges decide which parent gets custody of a child?.

At 13 years old, what a child wants is a factor that the judge has to consider, and it may be very important to the judge. In addition to all the other resources, you may want to listen to this podcast: What say do children get.

Judges are becoming more and more interested in what children have to say in separation and divorce. If the child has a clear preference, that is the result of pressure (intentional or not) from one party, that can be very important to how the judge decides. Judges care what children wants in child custody cases.

Judges care what children want in child custody cases in Toronto

If you have a report in your favour and your child’s views are in your favour, then you should make a formal offer to settle on the same terms as the report. If the judge agrees with the report after the trial, the judge can order your spouse to pay almost all of your legal fees from the day you made the offer until the day the judge made the order. If that order comes after a trial, then your spouse could owe you a lot of money. There may be some other strategies to get what you want while avoiding a trial, but those would depend on some very particular facts in your case. So, you should speak to a child custody lawyer about your situation.

You should also get a copy of this easy-to-understand $20 book on Ontario Family Law: Devry Basics Ontario Family Edition. It explains the court process, and gives several tips for how to succeed in court, and goes over the basics of Ontario Family Law so you have some idea of what your rights are. It goes over everything in this post in more detail. It may even be on sale on Amazon right now.

For further information or assistance in regards to family law, including questions and answers about topics like “Do Judges Care What Children Wants In Child Custody Cases?”, please contact one of our Family Lawyers in Toronto.

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Legal Grounds For Will Challenges

May 1st, 2013

The loss of a loved one can be a devastating experience. Unfortunately, some of those still grieving find another painful shock awaiting them when they learn they have been left out of the deceased’s will. These can be difficult times where informed legal advice regarding Legal Grounds for Will Challenges becomes a necessity.
There are a number of legal grounds in which to challenge the validity of a will. Below is a brief summation of the 3 most common types of will challenges.

The first ground for challenging the validity of a will would be its failure to comply with the rules set out by the Succession Law Reform Act. Ontario requires full compliance with the formalities of execution. While most wills prepared by legal professionals will comply with these rules many home made wills do not.
Another ground is whether the deceased had the capacity to make the will.
Did the deceased know what property and assets they had and that the will would be disposing of these assets after their death? Did they understand and have a true understanding of any obligations they may have to spouses and children? A challenge on this ground would require hiring expert medical witnesses to review the deceased medical records and retroactively assess the deceased’s mental capacity at the time the will was made.
The third ground to be discussed is whether there were any suspicious circumstances surrounding the drafting of the will or whether the deceased was under any undue influence. A Will has to represent the true intentions of the deceased. Undue influence can occur when a person feels compelled to honor the wishes of someone making a direct or implied threat, or attempts to leverage an elderly persons weakened state to their advantage. This can often occur when a child convinces a parent to remove their sibling from the will. Similarly, a will signed on the deceased death bed leaving everything to a caregiver at the expense of family members may give rise to a challenge on the grounds of suspicious circumstances.

Legal-Grounds-for-Will-Challenges-in-Toronto

The law surrounding challenges to a will is complicated. Furthermore, no two cases are the same. This article provides a brief, general introduction to the topic. If you are in this situation it is important that you seek out qualified legal advice from an Estate Lawyer. The Will lawyers at Devry Smith Frank LLP can assist you during this difficult time.

For further information or assistance in regards to Legal Grounds for Will Challenges, please contact Toronto Estates Litigation Department lawyer Justin Winch. He has significant experience representing executors and beneficiaries in the area of estate litigation, including Will interpretations, Will disputes, Legal Grounds for Will Challenges, passing of estate accounts and dependant support proceedings.

Should Shares in Payment for Services be Issued for Services Rendered?

April 25th, 2013

There is an increasing trend among emerging and high growth companies to pay service providers, either in part or in whole, by issuing Shares in Payment for Services in their corporation. For the emerging and high growth company, this is a fast way to pay for services they otherwise could not afford. For the service provider (especially those who have a venture capitalist mentality of owning a piece of many businesses), it is a way to participate in the potential upside of its clients.

The practice has gained particular traction in Toronto as numerous new accelerators, and the ecosystem created around the accelerator space, view investing partially through cash and partially through share issuance as the new normal.

The practice, in and of itself, is neither good nor bad. However, the emerging and high growth company and the service provider need to consider at least 3 issues:

1. Valuation of the emerging and high growth company
Companies who have not received external funding generally do not have readily available valuations. Consequently, it is typically hard to value the worth of an emerging and high growth company. The more practical issue is that valuation consists of guess-work by all parties without a formal valuation.
Where the service provider happens to also be investing money and services (as Arlene Dickinson of the CBC TV show Dragons’ Den is want to do), these issues tend to disappear or be mitigated since a pre-money valuation is being conducted. For those emerging and high growth companies not in this fortunate position, there is no definitive right answer.
2. Valuation of the services to be provided
Valuation of services provided in consideration in part or whole for shares of an emerging and high growth company can be rife with abuse. For example, a software developer charging $50,000 in cash to develop an application suddenly increases its fee to $75,000 in share consideration. Correspondingly, an emerging or high growth company hires the same software developer to develop an application in return for 10% of its shares and halts the project before completion, claiming no shares should be issued.

We have seen far too many hand-shake and “trust me” arrangements when services are provided in return for shares. At the very least, the parties must agree to the following:

a) A set valuation for the services to be provided. The valuation should at least be competitive with what the competition is charging. Where goods are being delivered instead of services, is the good being exchanged at cost, at cost plus a small profit margin or at regular retail/wholesale pricing? In other words, please do your due diligence.
b) The criteria when the shares should be issued. Are the Shares in Payment for Services issued at the beginning of the project, in tranches/ instalments as the project is delivered or at the end? For the service provider, what happens if the emerging and high growth company abandons the project in the middle? Do you have legal recourse?
c) The intellectual property must be exchanged for the services issued. This sounds obvious but we have seen service contract agreements which address services to be issued but not the transfer of intellectual property. Since Canadian copyright law generally states intellectual property belongs to the contractor unless otherwise indicated in writing, the emerging and high growth company needs to make sure this issue is addressed adequately.
As the above shows, the parties cannot resort to a standard contract in these types of situations and legal advice should be sought to protect the respective interests of the service provider and emerging and high growth company.

3. Rights of the service provider as a shareholder
If the service provider and the company disagree sometime in the future, should the service provider continue to remain as a shareholder? Alternatively, if the service provider provided a one-off service which is not mission critical to the business (i.e. sales and marketing services for a pitch to external investors 5 years ago), should it share in the upside of the business many years down the road?
This is perhaps the least thought through legal issue between the parties. There are several options to consider on a non-exhaustive basis:

a)The service provider be issued preference shares which are eligible for dividends with the company possessing a right to redeem the shares at a sum equal to the value of services to be provided plus, if negotiated, some type of additional preference value (for example, some multiple of the preference redemption value). In other words, the service provider is paid for upside over the years and receives the value of the service provided upon exit. This would be analogous to a liquidation preference on the shares venture capitalists typically receive when they invest in emerging and high growth companies. Qualified legal and accounting advice must be sought since this type of arrangement can cause unintended tax and legal issues.
b)The service provider and the company agree that the company has a buy-back option at some valuation to be determined. The buy-back option can either be added as part of a shareholders’ agreement or as a stand-alone agreement between the parties to avoid Shareholder Disputes.

As the above shows, the issues can be quite complicated from a business and legal perspective. It is always flattering for a company to be so attractive that others are willing to work on alternative fee arrangements. It is always exciting for the service provider to have the potential to participate in the upside of an emerging or high growth company. Whatever side of the relationship you are on, both parties should conduct their due diligence and seek qualified legal advice on issuance of Shares in Payment for Services.

If you have any questions, please do not hesitate to contact the Business Lawyers and Corporate Lawyers at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

Special and Extraordinary Child Support Expenses

April 22nd, 2013

Child Support’s Special and Extraordinary Expenses

This is episode of the Ontario Family Law Podcast is all about child support’s special and extraordinary expenses. Parents share those expenses on top of base child support, so it is important for them to understand how this component of child support works. This podcast explains what special expenses are and what extraordinary expenses are. It also explains how parents calculate how much of these expenses they should share. After that, John Schuman discusses the definitions of special expenses and extraordinary expenses and how they are different. He then gives specific information on sharing the following types of expenses as they relate to child support:

medical expenses
child care expenses
post-secondary education expenses
extra-curricular activities
sports – from beginning lessons to the elite level
hockey
private school

All separated parents should listen to this podcast to make sure they are paying, or receiving the right amount for special and extraordinary expenses.

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When do I need a Non-Disclosure Agreement (NDA)?

April 22nd, 2013

The simplest answer to the question, “When do I need a Non-Disclosure Agreement (“NDA”)?” is: “Before you disclose any confidential information to a third party”.

NDA’s are typically used when one party intends to disclose proprietary information that may have commercial value and is not yet in the public domain to another party; such as a potential customer, partner, investor, or manufacturer. You should consider using an NDA before disclosing or receiving any sensitive information that might be compromised by public disclosure. In general, such types of information relate to competitive advantages, potential business opportunities and intellectual property for which you may intend to file a patent application.

By using an NDA, you can ensure that:

your confidential information remains confidential;
you can still potentially obtain a patent; and
the confidential information can’t be misused for other purposes.

If you provide confidential information to another party without an NDA in place, the information could be used in ways that you don’t want and you may lose the ability to rely on important forms of intellectual property protection (such as patents and trade secrets). Without an NDA in place, disclosure of your invention to a third party is likely to be deemed public disclosure, which can potentially compromise your ability to obtain patent protection. While Canada and the US provide for the ability to file for patent protection within one year of public disclosure, many countries treat any public disclosure as an absolute bar to patentability.

With a well drafted NDA in place, a breach of the NDA will give you a cause of action and potentially allow you to seek injunctive relief (where the court orders the breaching party to cease disclosure and use) and monetary damages.

A well drafted NDA should include:

a description of the information that is to be considered confidential;
under what circumstances the receiving party may use the confidential information; and
the term of the agreement (ideally for the disclosing party, the term of the NDA will never expire).

non-disclosure-agreement-for-Intellectual-Property-Protection-in-Toronto

If you are the receiving party, it is also important that exceptions to the confidentiality provisions are clearly defined in the NDA. For example, information that the receiving party had prior to the disclosure, information in the public domain, information created by the receiving party, etc…

NDA’s often contain provisions confirming that the NDA does not grant the receiving party an explicit or implied license to the disclosed material and that any and all material disclosed shall be returned to the disclosing party upon request.

You should always ask anyone to whom you are disclosing confidential information to sign an NDA. In practice, it is not always easy to get someone to sign an NDA, particularly if you don’t have a previous business relationship with them. Typically, venture capitalists and other financers are reluctant to sign NDA’s given they come across so many inventions. Whether refusal to sign a non-Disclosure Agreement for Intellectual Property Protection is a deal-breaker will depend on your specific situation.

We have been assisting our clients to grow and to prosper since 1964. If you have any questions regarding confidentiality agreements or NDA’s in regards to intellectual property protection, please do not hesitate to contact the Intellectual Property Lawyers or Business and Corporate Services Department at Devry Smith Frank LLP.

Can a CAS worker interview my child without my permission

April 18th, 2013

Can a CAS worker interview my child without my permission and What are the Parental rights of Parents with Special Needs Children?

Does a CAS worker have the right to interview my 14 yrs old daughter with severe learning disabilities, ADHD and ODD without my consent after I have notified the school in writing that they are not to hold these interviews on the school property? If the information they gathered while interviewing my child requires them to request an in-home interview with the parents and other children, must I comply and allow them into my home? What are the parental rights of parents with special needs children in Ontario?

Yes. In Ontario, a Children’s Aid Society has the right to interview children without their parents’ consent during the course of a child protection investigation (an investigation into abuse or neglect). The school cannot stop the CAS from interviewing a child either. There may be issues as to whether a particular CAS worker is qualified to interview a child with specific special needs. However, refusing to let a child speak to a CAS worker only makes it look like you are trying to hide something and you are afraid that the child may tell the CAS that you are abusing him or her.

Whether you speak to a CAS worker yourself is a more complicated matter – and you really need to consult with a lawyer who does child protection law. If you do not cooperate with the CAS, that will be held against you. However, if the concerns are that you did something contrary to the Criminal Code, then you also have a right not to speak to the CAS because the CAS worker will tell the police every thing you say. If you are charged, you statements may be used against you in criminal court. If you do not speak, your refusal to speak to the CAS may be used against you in child protection court and make it difficult for you to get your kids back if the CAS takes them. This is a very difficult situation to be in. Child protection lawyers (the small number of family lawyers who do Children’s Aid Society cases) can give you a lot of valuable advice, specific to your situation, to try to keep you out of trouble.

Another good reason to speak to child protection lawyer right away is that there is a big advantage to having a lawyer ready to fight back right away if the Children’s Aid Society does take your kids, or starts court proceedings, or asks you to sign an agreement permitting the agency to be in your life. There is also a chapter on what to do when the children’s aid society is investigating you in this $20 easy-to-understand book on Ontario Family Law: Devry Basics Ontario Family Edition.

It really is worth your while to consult a child protection lawyer and read the book because if you get yourself into a trouble in a CAS case, it can take a long time to get yourself out and that may mean that your kids are in foster care for a long time. Getting good advice early on parental rights of parents with special needs children in Toronto can keep you out of trouble.
John Schuman is the head of the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca

My spouse is in the USA, can I get a simple divorce in Ontario?

April 15th, 2013

“I was wondering if it was possible to get a simple divorce in Ontario, Canada. Since, I live in Canada, but I got married in the USA. In 2004, my wife and I both agreed to a divorce, because she lives in USA, while I live in Ontario Canada — can I do a simple divorce from Canada?”

Yes. If you are looking to get a simple divorce in Ontario, what matters is where you live at the time you are getting the divorce. Where you got married almost never matters. However, you are not entitled to get divorced in Ontario if you have not lived in Ontario for one year – even if you were married here.

For a Canadian Court to grant a divorce, one of the spouses must have lived in the province granting the divorce for one year. If you have not lived in Ontario for one year, then you have to wait to get your divorce. That is on top of the requirement that you and your spouse be separated for one year. (There are a limited number of circumstances when you do not have to be separated one year to be divorced – see this article: Are male tongs grounds for).

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It is possible that Canada will not recognize your divorce if you get divorced in a place where neither spouse is living. That is true even if you go back to the place you were married. If you get divorced in a place where neither spouse lives, you may have to go to court in Ontario to have your divorce recognized here.
The biggest problems separated spouses face when they want a divorce from someone who lives in another country is often finding the other spouse.

For more information about getting an Ontario Divorce, including how long it will take, watch this video: You tube.

When getting divorced, you may have rights to support, property claims or rights in relation to the children. Some of those rights end or change when you get divorced. So, you may want to speak to a family lawyer about your options. You can also read this $20 easy-to-understand book on Ontario Family Law to make sure you are unknowingly making a mistake when getting a simple divorce in Ontario: Devry Basics Ontario Family Edition.

Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire Toronto Family Lawyer (many give a free first consultation). Contact John P. Schuman, or search the Lawyer Directory.

For further information or assistance in regards to simple divorces in Ontario or family law, please contact family Toronto family lawyer John Schuman.

John Schuman is the head of the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca or Listen to the Ontario Family Law Podcast!

When it helps to have a lawyer

April 11th, 2013

Trademark applicants represented by lawyer 50% more likely to get TM approved: When it helps to have a lawyer. I suspect the same applies in Canada.

Child Support For Children With Disabilities and Back Support

April 10th, 2013

This is in regards to child support for children with disabilities. My son is 21yrs old, disabled and requires 24 HR supervision. I found out that his father had been lying about his income since 2002. He works for Trousers in Edmonton. A higher up position said he is making $24,000.00 a year. I am unable to work as I am caring for my son. As I see it his father owes us back support payments and should continue to pay support. He has never been in his sons life. Left when he knew our son had a permanent disability. My son and I live in Ontario, his father in Edmonton. What are our rights, I can’t afford a lawyer. Any advice would be helpful. Tried but legal aid Ontario won’t help. Please help us. Thank You, Sharon.

Child support will be around 15% of the father’s total income paid to you tax free. The link (below) to My Support Calculator will give you a precise figure. If you asked for the income information, and his father lied about it, then you will be entitled to a retroactive adjustment back for a long time. If your disabled son’s needs are not being met because of financial difficulties, a judge will not be sympathetic and may order the support adjustment retroactive to when the father started lying about his income. On top of that, he will have to pay a large (probably most) of the costs of “special expenses” in relation to your son’s disability, which could include respite care, medication, devices, and professionals not covered by OHIP. Again, this could be retroactive. Since your son is over 18 years old, you may want to look at this page as well: Child support does not end.

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In addition, if you cannot work because you are caring for a disabled child, you should have been receiving spousal support. That could be a big number too. Whether a judge will order spousal support in the circumstances is more up in the air because you did not ask for it right away. Since your not working is still related to the relationship, there is an argument to be made, but also an argument you should have asked earlier. (Of course if you knew his true income, you would have asked earlier.) For more on spousal support, this video and see these webpages: Spousal support will I get it and Spousal support how much will I get.

In the circumstances, it would likely be worth your while to hire a lawyer because the amount of money to which you may be entitled could be large (and except from bankruptcy if he tried that). A judge might also order him to pay some of your legal bills in the circumstances (as long as you act reasonably in the circumstances.)

To get more information about these, and many other, family law issues, and also information and tips for how to proceed in family court, get a copy of this $20 easy-to-understand book on Ontario Family Law: Devry Basics Ontario Family Edition

For further information or assistance in regards to support for children with disabilities or family law, please contact Toronto employment lawyer John Schuman.

Very distressed child asked for advice in upcoming child custody case

April 8th, 2013

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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. This webpage has information about kids expressing views in their parent’s divorce process: Should the kids be involved.

Here is a podcast that has a discussion of what voice a child should have in family law matters: What say do children have. You may also want to look at this article questioning why children have a much greater say in their health care then in where they live: Consent to treatment and parenting .

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.

Spousal Support and the Marriage Contract

April 4th, 2013

The marriage contract makes a clear statement that no spousal support will be paid after the divorce. Under what circumstances can the judge enforce the spousal support on the working spouse, if the second spouse is unemployed? We live in Ontario.

There are specific circumstances in which a judge might set aside a marriage contract to order spousal support. They are discussed in more detail in this $20 easy-to-understand book on Ontario Family Law: Devry basics Ontario family edition. It is not a simple answer. You really should consult with a family lawyer about how the law applies to your particular circumstances because a little fact can make a big difference. But, I will give also give a brief summary.

Spousal support can be ordered because a marriage contract has been set aside in these circumstances:

1.The parties did not understand the marriage contract, meaning they did not each consult with an independent lawyer of their own choosing.
2.They did not exchange financial disclosure when they signed the contract.
3.The contract has terms that are not legal (and the terms of the contract are not severable).
4.There were problems with the negotiations – either one party was under duress, or one party was under pressure (the contract was signed right before the wedding), one party was trying to be “sneaky” with regard to the wording of the terms, there was unequal bargaining power, etc.
5.The parties did not contemplate the situation that they are in now at the time they signed the contract.

There is a more complete discussion of these considerations in the resources listed above. If your contract was drafted by a good family lawyer, then chances are it has all the terms and wording it needs to guard against being set aside. But you should take it to a family lawyer and have them check the terms, and the situation, and let you know your situation. Spousal support can be worth a LOT of money, so it is best to know your rights and not guess.

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One more note… The test for whether a court can order temporary or interim support is different from the test for making a final order for support. It is possible that a judge can order spousal support until the issue of whether spousal support should be ordered at all is determined in full. I realize that sounds a little confusing. It is complicated area of law… another reason to speak to a good family lawyer about your situation. For further information or assistance in regards to marriage contracts or spousal support, please contact one of DSF’s Toronto family lawyers.

DSF Joins Alliot Group

April 3rd, 2013

Devry Smith Frank LLP is pleased to announce that we have joined Alliott Group, a worldwide alliance of independent accounting, law and consulting firms with more than 160 member firms in over 70 countries. Alliott Group has representation in most major cities in the United States, throughout Europe, Latin America and Asia Pacific, and in selected locations in Africa.

Membership in Alliott Group is limited to independent professional services practices that satisfy the group’s stringent benchmarks and best practices. Membership is generally limited to smaller to mid-sized firms. This ensures that clients will enjoy a high standard of personal service whenever they are referred to another member of the Alliott Group alliance. We are proud to be the first Canadian law firm admitted to Alliott Group.

Over the past years, we have developed our ability to undertake increasingly sophisticated legal work, commensurate with our clients’ increasingly complex needs. Membership in Alliott Group will enable us to further expand the complexity and sophistication of the services we are able to provide to our clients.

Many of our clients are multinational businesses for which we act locally. As Alliott Group continues to expand, we will now be able to provide these clients with increasingly easy access to transnational and international professional advisors, and to continue to meet our clients’ growing needs. In addition, given the high proportion of Toronto’s multinational population, membership in Alliott Group will enable us to ensure that these clients have access to legal and other professional services, both within Ontario and in their jurisdictions of origin. Membership in the group will provide access to a global alliance of resources to assist our clients in developing business opportunities throughout Canada and internationally.

Tax Considerations in Wrongful Dismissal Settlements

April 3rd, 2013

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.

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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.

Wrongful Dismissal Case Garners Record Punitive Damages Award

April 1st, 2013

The plaintiff, Larry Higginson, was employed as an electrician for 34 years by a sawmill, in the B.C. mill town of Burns Lake. In later years, Mr. Higginson served as a manager in the electrical department.

In or about October 2006, the sawmill was sold to a new American owner, Hampton Lumber Mills (“Hampton”). Mr. Higginson was dismissed for cause three years later in October 2009.

In Higginson v. Babine Forest Products Ltd., 2010 BCSC 614 CanLii, Mr. Higginson’s alleged causes of action ofwere wrongful dismissal and inducing breach of Mr. Higginson’s contract of employment. According to Mr. Higginsonhim, he was terminated in an attempt to avoid paying severance to long-serving employees, a practice, Mr. Higginson submitted, that was part of a full-scale institutional scheme. Moreover, the new American owner created a hostile and miserable working environment for Mr. Higginson in the hope that he would quit. Hampton argued that it had just cause for the dismissal.

In deciding that there was no cause to terminate Mr. Higginson, the jury awarded him $236,000 in compensatory damages for wrongful dismissal and $573,000 in punitive damages for the company’s conduct in terminating him.

The historic jury award lends itself to a discussion of several legal and business issues.

Whether the punishment fits the crime is arguable. Indeed, if Hampton’s actions were isolated to Mr. Higginson rather than systemic as against all long-serving employees, the quantum of punitive damages, if any, would at least be called into question. Which begs the question, how much of Mr. Higginson’s reward should be based on Hampton’s actions as against other employees?

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It will also be interesting to see whether this jury award paves the way for new legislation. At a minimum, continuity of employment provisions under the Employment Standards Acts (“ESAs”) across the country should be revisited to ensure that ESAs are adequately protecting employees during the process of a business being sold. On the other hand, the foregoing continuity of employment provisions should not be unduly restrictive on buyers, as that may have the unintended consequence of disincentivizing purchases of existing businesses and harm buyers, sellers and employees alike.

This jury award will likely have more far-reaching implications in small and single industry/employer communities because the circumstances of displaced workers in those communities tend to be bleaker. At this stage, however, it is not clear whether the jury award will have any traction in major metropolitan areas, where there tends to be greater employee mobility and industrial diversity.

The jury award will invariably force employers and their lawyers to take notice, which may in turn, facilitate more out-of-court settlements in efforts to avoid litigation.

What is clear from this jury award is that employer misconduct will not be tolerated, nor should it be. It is beyond the scope of this article to recite the innumerable types of employer misconduct, instead, I will borrow and rely on U.S. Supreme Court Justice Potter Stewart’s famous characterization of pornography in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964), a First Amendment case dealing with obscenity and constitutionally protected speech, where he stated: “I know it when I see it”. Justice Potter Stewart’s characterization of pornography rings true for employer misconduct, which was obviously present in the instant case (Subsequent to the jury award, Hampton filed an appeal and the parties settled the case out-of-court for an undisclosed amount. As such, the appeal was withdrawn).

How do I make a child support adjustments if I’m paying too much?

March 28th, 2013

I believe I’m paying too much child support and want to know how to make a child support adjustment. Based on the average of my last 3 years income, according to the online government charts, I am paying approximately $100 too much every month. Do I have any recourse? Thanks for your help.

If you have checked the tables, and you are a salaried employee, then you probably have your child support right. If you are self-employed, calculating your income is significantly more complicated and it may not be worth it to try to change support for $100 per month. Also, you may have an obligation to contribute to special and extraordinary expenses, and if you are not, that might eat up the $100 per month. For more on special expenses, watch this video: child support in Ontario or read this page: what about my son’s hockey fees and my daughter’s daycare expenses.

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If you are overpaying support, and you are paying under an agreement, then you can renegotiate that part of the agreement, possibly using mediation or arbitration as a faster, less expensive way to resolve the issue. If you are paying pursuant to a court order, then there is a simplified process under Rule 15 of the Family Law Rules (English elaws) to change support. You file a Motion to Change Form and a Change Information Form, along with a new financial statement and 3 years of Notices of Assessment, with the court. You then serve those documents on your ex. The court will schedule a case conference or DRO. After that, you may go to a motion to have the judge decide what the appropriate level of support will be. To navigate this process, it is best to at least consult with a family lawyer. In addition, more information about child support, and more detailed instructions about how to change support, as well as more in-depth description of the court process, can be found in this $20 easy-to-understand book on Ontario Family Law: Devry Basics Ontario family edition.

For further information or assistance in regards to child support adjustments or family law, please contact Toronto employment lawyer John Schuman.

Calling your boss dishonest could amount to just cause termination

March 25th, 2013

Many disgruntled employees have thought about writing angry letters to their “horrible bosses” which could amount to just cause termination. One such employee, Ms. Bennett, a Mississauga lawyer, accused her employer, Ms. Cunningham, of taking credit for work she completed and billing clients for time Ms. Bennett spent on files. Ms. Bennett paid the ultimate price for a letter calling her employer dishonest and negligent; she was fired from her position without notice. In response to the termination, Ms. Bennett brought a lawsuit for wrongful dismissal. Bennett v. Cunningham went through three levels of court, ending unsuccessfully for Ms. Bennett at the Court of Appeal.

The trial judge found just cause for termination based on highly critical comments made against the operation of the law office and the integrity of the employer. As a result, the trial judge held that Ms. Cunningham had just cause for termination without notice. The Divisional Court on appeal reversed the trial judgment for failure to use a contextual approach that considers the circumstances surrounding the conduct as well at the nature and degree of conduct. On a further appeal, the Court of Appeal restored the decision of the trial judge of just cause termination.

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The lesson from Bennett v. Cunningham is that employment law and actions for wrongful dismissal are not black and white. Three levels of court were asked to determine if an angry letter to a boss amounted to just cause termination. In addition, this case should be used as a precautionary tale for disgruntled employees to think twice of the consequences of hasty actions.

For further information or assistance in regards to just cause for termination or employment law, please contact any of our Employment Law Lawyers.

Mother Denies Me Child Access, Do I Keep a Journal?

March 20th, 2013

Mother Denies Me Child Access, Do I Keep a Journal? How can I in force a court order?

If the mother is repeatedly denying you child access, against a court order, then you should keep track of the circumstances. But do not let it go on too long. You should go back to court, on a motion, and ask for the court to order make-up child access for the time you have missed at times that work for the children and you. The judge will not be happy that your ex is not obeying the court order. She will get told off. While the judge will always make the order that is in the best interests of the children an important factor in that is how willing a parent is to support another parent. Bringing a contempt motion immediately might make you look like a bully or part of the problem. However, if the problem persists, then you can use the judges comments on the first motion (for make-up time) as part of your evidence in the contempt motion and the second judge will probably be really angry.

If the mother says the kids do not want to go, check out this webpage Can I be held in contempt for the answer. That is often not a valid reason for denying access.

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Whenever you go to court, you should consider the circumstances of your children and the effect that your actions might have on them. Judges really like it when you show you are sensitive to those considerations. To find out more about them, listen to this podcast The voice of a child protecting children during divorce.

The best way to make the best case to a judge is to have a lawyer help you. You should also get a copy of this $20 easy-to-understand book on Ontario Family Law, as it covers these topics, and gives advice on how to navigate through Family Court and how to keep the judges on your side Basics of Ontario Family Edition.

For further information or assistance in regards to child access or enforcing court orders, please contact John Schuman Toronto Family Lawyer at (416) 446-5080.

Child Support in Ontario/Canada: Who Pays and How Much?

March 20th, 2013

Child Support in Ontario/Canada: Who Pays and How Much?

In this episode of the Family Law Podcast discusses the basics of Child Support in Ontario and in Canada. It starts with who pays, and then moves on to explain how much child support should be paid by going over the calculation. There is more than one component to child support. There is both base child support and contributions to special and extraordinary expenses. This podcast explains what each component is. Finally, the podcast discusses some of the special circumstances in child support, such as when the children divide their time equally between parents, when some children live with one parent and other children live the second parent, and what happens when there are more than two parents.

Child support is an area where a lot of people get into trouble. This podcast is critical listening for anyone who is a parent to children, or who is about to become a parent either by birth or by moving with a new partner who has children.

How Properties are Divided After A Marriage in Ontario

March 13th, 2013

How Properties are Divided After A Marriage in Ontario

When married couples separate in Ontario, they don’t just have to separate their lives. They have to separate their finances. One of the main reasons people see Ontario Divorce Lawyers is to help figure out how to divide up their assets and liabilities after they separate. This is episode of the Family Law Podcast discusses how property is divided in Ontario after a marriage. Many people think that spouses own each other’s assets. They do not. Family lawyers know that separated married spouses only get to share in some of the value of each other’s assets in the “property equalization” process, which can be voluntary process. In addition, not all assets and debts are shared. Some are kept out of the calculation. This podcast tells you what is in and what is out. It also describes some common pitfalls where people unnecessarily lose lots of money to a spouse, and it gives tips on how to protect your assets. Everyone who is going through a separation should listen to this podcast to know their property rights, how to protect them. Even if you are no in family court, you need to know whether you are making a good deal.

Working Overtime – Just Cause for Termination?

March 5th, 2013

Is Working On Break Considered Unauthorized Overtime and Cause For Termination?

The recent decisions of the Human Rights Tribunal in Shettleworth v. GAP (Canada) Inc. have upheld a employer’s right to terminate an employee for not taking mandatory breaks throughout the work day. The Tribunal found that the employer had a legitimate reason to enforce its mandatory break policy, since it could otherwise be liable for overtime pay under the Employment Standards Act, 2000.

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For the Tribunal’s decisions click Here and click here

For an article about other overtime cases click here.

Ex wanting additional child support if I live with a girlfriend

March 4th, 2013

Ex wanting additional child support if I live with a girlfriend.

I have been legally separated for over 10 years … everything finalized in separation agreement … have joint custody of my daughter .. ex-wife is primary care-giver … I pay child support, the amount for my income based on the gov’t tables …no longer pay spousal … am soon moving in with my girlfriend of 3 years … is there any chance my ex-wife can demand more money (for any reason) from me based on my better financial situation being in a two income household … do not want to hinder the future of my relationship by the possibility she can …

Asked 1 day ago in Mississauga, Ontario
Categories: Family Law

Answer by John P. Schuman
Ontario lawyer
Regarding child support, unless you are somehow sharing income with your wife (you are paying her as subcontractor, have an arrangement with your employer to pay her instead of you, etc.) her (your girlfriends) income is not relevant for the spousal support calculation…. unless she steps into the place of a parent (meaning she becomes more that just a babysitter). If she becomes a parent, then she may be liable for child support. There will be a video blog on www.schumanlaw.ca soon, but here is a brief article But its not my kid. If your income has gone up since child support was originally set, you may owe more on that basis as child support is reviewable, and changeable, every year.

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Spousal support is more complicated. It should never be bases on your new partner’s situation, but it may be possible for your ex to ask to start it up again. A lot may depend on how support ended and whether you stopped paying pursuant to an order or agreement that specified an end date. It may also depend on how long ago that the spousal support stopped. If your wife has not been receiving spousal support for a while, then she may be “self-sufficient”, which is one of the goals of spousal support. If she has already achieved self-sufficiency, it may be difficult for her to ask for more support. But, to see if she might qualify for support again, read this post Spousal support will I get.

To get the most piece of mind, you should speak to a family lawyer who can apply the law to your situation. Also, this $20 easy-to-understand book explains child and spousal support in more detail, and explains what your spouse has to do to change the current support situation Devry Basics of Ontario Family Edition. It also explains the basics of almost every other family law issue.

Does A Stepdad Have Rights To A Child If…

February 26th, 2013

Does a stepdad have rights to a child if they didn’t adopt them but the Childs last name was changed to the stepdads

I just answered that very question at a presentation I gave on Valentine’s Day.
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However, the simple answer is that in Ontario, anyone can apply for custody or access to any child. So, you have the “right” to ask for either custody or access. The judge then decides what order is in the child’s best interest. The full list of the factors that judges consider in these cases are described here at How do judges decide which. However, in your case, the most important consideration is how close your relationship was with the children during the relationship.

If you were close, and the children viewed you as a parent, then you have a good case to ask for custody or access. To better understand what those terms mean, read this webpage What say do children get and this article Consent to treatment and parenting .

Note – having a good case to get custody or access of your stepchildren likely means that your ex has a good case to get child support from you for those children. That topic is also covered in the first podcast above, and this webpage But its not my kid. Cases involving children always revolve around the children’s best interests. What is in a particular child’s best interests depends on the specific facts of the cast. It is always best to talk to a family lawyer about your circumstances to learn about how the law applies to your particular situation and to find out what your options are. The lawyer should also give you some idea of the time and cost involved in getting what you want.

If you do not think you want to see a lawyer, then, at the very least, you should read this $20, easy-to-understand book on the Basics of Ontario Family Law that covers the issues above and many others Devry Basic Ontario Family Edition.

Can I be held in contempt if the kids are refusing …

February 19th, 2013

Can I be held in contempt if the kids are refusing, and what are the chances they will be physically forced?

If there was ever a time when you need a lawyer, it is when facing a contempt motion. The judge can throw you in jail, for a significant period of time, impose large fines, or order other serious consequences. You need a good lawyer to advise and represent you to make sure the right facts are before the court. The court order for access requires you to do everything in your power to support the children having a relationship with their father. That entails telling them that they have to go. If that does not work, then you should have arranged for counseling or programs to assist them with their feelings toward their father.

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The judge will also want evidence that you are not subtly suggesting to the children that it is not ok for them to go with their father. Once your ex has established that the access did not happen, it is up to you to show that it was not possible for it to happen. Judges do not think that children aged 9 and 11 should have the final say on these types of issues. They may have input, but if there are problems, then someone has to arrange a way for the children to express their feelings, while at same time figuring out how to make the access work.

If you want more information about giving a children a voice in family law matters, listen to this podcast: What Say Do Children Get and this one: The Voice of a child protecting children during divorce . You can also read this article: Consent to treatment and parenting.

For more information on these, and other family law issues, I recommend you get a copy of this easy-to-understand book on the Basics of Ontario Family Law: Basics Ontario Family Edition . It goes over these matters in more detail, describes the court process and lists the most common ways to get into trouble in family court (with some advice to get out of trouble again).

Podcast: Play in new window

Benefits of Intellectual Property License Agreement

February 15th, 2013

Properly licensing intellectual property can be an important factor in the success of any business. A license is essentially permission to do something that, without the license, would be an infringement of intellectual property rights. The party granting the license is usually called the licensor, and the party receiving the license is usually called the licensee. (note that there may be more than one licensor or more than one licensee in a license agreement).

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A license grants the licensee permission to use the licensor’s intellectual property subject to specific terms and conditions, which may include the purpose of use, a defined territory and a defined time period. In exchange for the granting of this permission to use, the licensor receives financial compensation, which can be in the form of a guaranteed fee or a royalty on a percentage of sales, or a combination of both.
Licenses are mutually beneficial to both licensees and licensors in that they allow businesses to work together to develop new products and services. Licensing provides a number of benefits to the licensor, including:

increasing brand presence at the retail or distribution level
creating further brand awareness to support its core products or services
supporting and enhancing its reputation and goodwill by associations with the licensee
increasing market penetration into markets (consumer or geographical) which were inaccessible with its own resources or capabilities
generating new revenue streams, without the cost or risk of manufacturing, promoting and selling those products

Licensing is also beneficial to the licensee, as obtaining a license can:

transfer the goodwill and reputation of the licensor’s brand to the licensed product or service
provide added value and differentiate the product or service from competitive offerings
provide additional marketing support or momentum from the ongoing activities of the licensor
appeal to new target markets who have not historically been interested in a licensee’s product or service
give credibility for moving into new market sectors through product extension
reduce costs, but gaining the right to use the IP without the research and development costs and risks
save time by allowing a licensee to get its products or services to market more quickly by acquiring a license to use existing IP, instead of re-inventing the wheel allow a licensee to tap into the expertise of the licensor that the licensee may not have in-house.

Whenever you think about taking or granting a license of any IP the first step should be to assess the needs and objectives of your business and how licensing might help meet them. If you have any questions regarding the drafting or negotiating of a license agreement, please do not hesitate to contact a lawyer in the Intellectual Property department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

How Your Heart Can Get You Into Financial Trouble

February 14th, 2013

How Your Heart Can Get You Into Financial Trouble – Step Children and Matrimonial Homes (Special Valentines Day Edition)

This episode was a special live recording of a Valentines Day discussion of Family Law Issues. In light of the day, the topic of discussion was how your heart can get you into financial trouble under Ontario Family Law.

The discussion starts with a brief explanation of how property division works. It then moves on how property division works differently for matrimonial home and how that difference costs people money. The discussion then explores how a marriage contract or a family trust can avoid the problem.

The second way people can let their heart cost them money is by becoming a parent to step children. Step-Parents who are actively involved in parenting will have to pay child support for those children when the marriage breaks down -even if the biological parent is already paying support. this podcast covers how that happens, and how much support may have to be paid.

Of course, step-children will also have a right to continue to see any step-parent with whom they have a close relationship. In response to an audience members questions, there is a brief discussion of this topic as well.

This special Valentines Day edition of the podcast is essential listing for people who want to know what their heart can cost them.

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Custody and Access: A simple explanation

February 7th, 2013

Many people confuse the terms “custody” and “access”. While commonly related in terms of parenting time, the two words mean different things.
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Custody refers to the legal right to make major decisions about your children. These decisions usually include education, such as what school your child will attend, and health, what treatment your child will obtain. The parent with custody also has the right to make decisions regarding religious upbringing, although this is a less common issue. Generally, the parent who has the children on a particular day makes the day-to-day decisions, i.e. whether your child should stay home from school sick.

Access is the time each child spends with a parent.

If you have joint custody of your child, you and the other parent must agree on any major decisions. However, this does not mean that your child spends half of their time with you. Two parents can have joint custody, but the child spends every other weekend with one parent and the balance of their time with the other. Similarly, one parent can have sole custody, but the child can reside entirely with the other parent.

Custody is assessed based on the best interests of a child, and that test is set out in section 24 of the Children’s Law Reform Act. Decisions with respect to custody are often based on two major factors: During the relationship, did the parents make decisions together, or did one parent make all of the decisions, and, since the separation, can the parents continue to make decisions together. Courts and professionals are also very aware of both parents’ ability to promote the child having a relationship with the other parent. A parent who discourages a child’s relationship with the other parent may be seen as “alienating”, which is a problem that is taken very seriously.

It is important, both to protect your children, and to protect your right to make decisions for your children, that you work together with the other parent in regards to custody and access following a separation, as long as the circumstances are appropriate to do so.

How Do Judges Decide Which Parent Gets Custody of a Child?

February 7th, 2013

custody-of-a-child-toronto

When parents cannot agree on how they are going to raise their children after separation, judges or arbitrators have to decide which parent should have custody of a child. That is unfortunate because judges usually have a very limited amount of time to spend with the family. They may not see the children at all, and yet the judge is making critical decisions about the rest of the children’s lives. It is almost always better for the parents to decide what plan will work best for their children because they know the children and themselves better than a judge will ever likely get to know them. Arbitrators can sometimes get to know families a little bit better, especially when they act in the role of mediator/arbitrator. But still, their knowledge of the family will never be as good as that of the parents.

When deciding which parent should have custody, judges and arbitrators give almost no weight, perhaps no weight at all, to what the parents want. The law requires that when a judge or arbitrator makes a decision in relation to a child, the only thing that matters is what is in the best interest of the child. That is often obvious, but sometimes it requires a greater analysis.

When the court must undertake a full analysis of what is in the best interest of a child, there are certain specific factors that it looks at. First are the love, affection and emotional ties between the child and each of the people claiming custody to the child, usually the parents, other members of the child’s family who reside with the child, most commonly the child’s siblings, and persons involved in the child’s care and upbringing, such as extended family, friends or maybe even professional caregivers, teachers or healthcare providers.
Another factor that the judge must consider is the child’s view and preferences, if they can be reasonably ascertained. This means that the child must be making a clear statement of what he or she wants. It is not up to the parents to go and try to elicit this from the child. This child’s opinion must be on that the child developed on his or her own.

Another factor that must be considered is the length of time that the child has spent in a stable home environment. This can be an important factor in custody and access cases because what the court looks at is where has the child been living, for how long had they been living there, and have things been working out. So if a child has been living in one place for a period of time, and everything has gone well, the court is reluctant to change things for the child. The situation in which the child is living is often called the “status quo”. Judges are very reluctant to change the “status quo” if things have been going on well. Further, the longer things have been going on well, the more reluctant judges are to change them.

Judges must also consider the ability of each of the parents to provide for the child. Judges look at which parent can best provide the basic necessities of life, and also provide education and guidance for the child. Where a child has special needs and one parent can provide for those special needs better than the other, that is another important factor that the judge takes into account.

To take into account all of the above considerations, each parent has to put together a plan for how he or she is going to care for the child. Judges, when considering who should have custody, also consider the plans that each parent puts forward. So when a parent is going before a judge to decide who has custody, he or she should have a plan that addresses all the considerations described above.

Judges are also required to consider the permanence and stability of the family unit in which it is proposed that the child lives. So a parent who has a transient lifestyle, or who has a number of partners going in and out of their life, will have a harder time getting custody.

Judges also care about each parent’s ability to act as a parent generally. Judges frequently think that someone cannot act as a good parent if that person cannot support the children’s relationship with the other parent.
Finally, the court is also required to consider the child’s relationship by blood, meaning DNA, or through an adoption order between the child and the people who are applying for custody. This gives biologic or adoptive parents a slight advantage over other people who are not as closely related to the child.

Judges are also specifically required to consider the issue of domestic violence. If a parent has exposed a child to domestic violence, then that parent will have a much harder time getting custody of the child, possibly even getting time with the child.

Note, that in all these factors the judges and arbitrators are required to consider in custody access cases, what a parent wants is not one of them. A parent’s schedule, or financial circumstances, or other needs are not factors that the judge must take into account. All that is important is what is in the child’s best interest. In court, parents should be focussing on their child’s best interests. However, often when parents are in family court on custody of a child or access issues, they have not given any thought to their child’s interests at all.

DSF Associate’s Involvement in Economic Consultation

February 4th, 2013

Florendo Llameg and Tony Clement

On January 21, 2013, an associate from Devry Smith Frank LLP, Florendo Llameg, had the privilege to attend a roundtable discussion of Canada’s economic issues at the McGregor Park Community Centre in Toronto. The invitation to the event was made by the Honourable Tony Clement, President of the Treasury Board, to members of the Toronto Philippine business community. As a member of the Philippine Chamber of Commerce – Toronto, Florendo Llameg attended the event as part of the Harper Government’s economic consultations. The local consultation was aimed at harnessing valuable input from hard-working entrepreneurs, professionals and business owners who invest, innovate and create jobs in Canada. In attendance from the government in addition to Minister Clement were Roxanne James, Member of Parliament for Scarborough Centre, and Joe Daniel, Member of Parliament for Don Valley East. The President of the Philippine Chamber of Commerce- Toronto, Oswald Tugadi had the following words in response to the roundtable invitation: “I believe that this is the first time that we, Filipino Canadians, will have an opportunity to have input in such an exercise.” Furthermore, Florendo Llameg enjoyed the opportunity to represent his local community and participate in a discussion of economic growth in Canada.

Why is my income for support purposes so much higher than my
total self-employment income?

February 1st, 2013

The process of calculating the child support or spousal support obligations for someone who is self-employed is much more complicated than it is to calculate support obligations for someone who is a salaried employee. Self-employed individuals have some ability to manipulate their income, or at least how it appears on their tax return. They can structure their affairs to pay significantly less tax than their employee counterparts. That reality led the courts to consider the fairest way to calculate income for support purposes.

One of the reasons the Child Support Guidelines, and subsequently the Spousal Support Advisory Guidelines, were implemented was to create uniformity in the way that support is calculated for separated parents and spouses. Ideally, people of the same financial means should be paying the same amount of support. However, people who are self-employed have a wide range of tools available to them so that they pay less tax, and thereby have more money in their pocket, than their salaried colleagues being paid the same amount. The courts decided that the fairest approach to determining support was to figure out a way to ensure that people with the same amount of money in their pockets every month paid the same amount of support, regardless of how they earned that money.

There are a few ways that the court may adjust the self-employed person’s income to adjust for tax savings and other advantages of being self-employed:

Child Support Guidelines

2.Self-employed individuals, who have a corporation, can leave some of the money they earn in the corporation, which means that income never shows up on the business owner’s tax return. Business owners can thereby keep savings in the corporation and invest the entire amount, where a salaried employee has to create savings from his or her after-tax income. The Guidelines make things fairer by requiring that any money that the business earns, which is not required for the ongoing operation of the business, be added into the owner’s income for child support purposes.

3.Some business owners reduce their amount of tax for the family by dividing the income between several family members, such as a spouse, children, or the owner’s parents. The amount that these family members receive may not reflect the work that they do for the business. These payments may be designed to divide the income due to the owner across several tax returns so that it is taxed at a lower rate. The Guidelines take into consideration payments that the business makes to non-arm’s length individuals when calculating the business owner’s income for support purposes.

4.Business owners can also write-off many expenses in the business, some of which may also have a personal benefit to the business owner. An obvious example is a cellular phone. The business owner likely requires a cellular phone for business purposes, which makes it a legitimate deduction for tax purposes, but as a result, the business owner does not need a personal cell phone and avoids that expense. Some expenses can have quite a large personal components and the business owner can receive significant benefits without reporting additional income on his or her tax return. The Guidelines require that the personal component to business expenses be added back to the business owner’s income for support purposes.

self-employed-support-toronto

As it is evident from above, many of these strategies have significant tax advantages for the business owner that allows him or her to pay less tax than a salaried employee. The law requires that an additional adjustment be made to take into account the tax savings that business owners can enjoy but salaried employees cannot. To accomplish this, the law does not just add back the amount of personal expenses or other amounts that do not appear on the business owner’s tax return, but also adds back the tax savings as well. This is called “grossing up” the support payers income for tax. For higher income individuals, this additional amount can be significant. The highest tax bracket is around 43%. This means that the law requires that for every dollar of income that the business owner is able to take off his or her tax return, $1.43 is added back to that reported income for support purposes. This is fair because the adjustments looks at how much money the business owner gets to put in his or her pocket and then bases support on how much a salaried employee would have to earn to have that same amount of money in his or her pocket.

The above are just some of the examples of adjustments to reported income that the law makes when determining income for support purposes. Income for support can be much higher than the “total income” as reported on a tax return. In any child support or spousal support case, it is important for both the support payor and the support recipient to speak to a lawyer to make sure that the level of support is appropriate.

What does the term “custody of a child” mean – FAQ for Custody Lawyers

January 30th, 2013

What does the term “custody of a child” mean?

When there are children of the marriage, one of the things that custody lawyers hear most frequently at initial consultations is that the client wants either “sole custody” or “joint custody” of those children. However, it is rare for those same clients to understand what the term “custody” means. Custody no longer refers to where a child lives. In Ontario Family Law, the term “custody” refers to who makes certain decisions with respect to that child. In many cases, if not most cases, those decisions regarding the child are not controversial and so who has custody makes little difference.

When parents separate there are two important groups of issues that they, or if they cannot agree, a court or arbitrator, must decide with respect to the children. Those groups of issues are as follows:
custody-of-a-child-toronto

(b)Who will make the big decisions in relation to the child. Those big decisions are
decisions related to education, major medical treatment, religious upbringing and
extracurricular activities in which both parents will have to be involved.

It is the decision making, as described in Paragraph (b), that relates to who has custody. If a parent has “sole custody”, without any other limitations, then that parent can make those decisions in relation to education, medical treatment, religion and extracurricular activities by him or herself. If the parents have “joint custody”, then they must make those decisions together. Ironically, it is fairly rare for parents to have a disagreement over what school a child should attend, whether the child should have medical treatment, or what religion the child should be raised in. So for most separated families who has custody really makes little difference. In “high conflict separations”, the parents fight with each other over almost everything. They will fight over issues that they might not have fought over while they were together. Sometimes they will fight over simple things like what school the child should go to just for the point of having the fight. In those cases, joint custody does not work well.

Sole custody does not work well where one parent wants the other parent out of the lives of the children. If that parent has sole custody he or she may use it to make decisions to deprive the children of a relationship with the other parent. For example the parent may choose to have the children go to a school that is far away from the other parent or that in some way makes it difficult for the parent to visit with the children. Judges try quite hard to keep parents who are not supportive of the children’s relationship with the other parent from having sole custody. They either try to order joint custody or give sole custody to the parent who will facilitate a relationship with both parents.

Unfortunately, custody is usually more of a status symbol than a legal necessity. After separation, parents like to say that they have “custody” of their children. Parents will fight to have that “status symbol” when they would not have thought over the decisions that are made by the person who has custody. For that reason, it is becoming increasingly popular for separation agreements and court orders to not mention the word custody at all. Instead, the agreements, or court orders, state where the child will be living and when and which parent gets to make which decisions. When deciding those issues, the courts usually look at what went on during the marriage in terms of what time the children spend with each parent and who made the decisions during the marriage. If possible, courts try to leave things the way they were.

The only time that the term “custody” can become important is with regard to international disputes in relation to a child. If one parent wants to abduct a child to another country it can make a difference which parent has “custody” when there are legal proceedings to have that child returned. However, when one parent acts unilaterally to remove a child from the other parent’s care, judges in Ontario often do not have concerns about making an emergency custody order in favour of the parent who is left behind. In deciding whether a child should be returned to another jurisdiction, judges in Ontario are also more interested in what the parenting situation looked like before the removal than who had the label of custody. Put another way, when Ontario Family Court judges are considering what parenting orders to make in regards to custody of a child, how the parents parented the child in the past is usually more important than whether one of them had a label of “custody”.

What Does The Term “Custody Of A Child” Mean?

January 29th, 2013

What Does The Term “Custody Of A Child” Mean? How Does A Judge Decide Who Should Get It?

This episode is about the important issue of “custody of the children.” What does that term really mean? The legal meaning is very different from what most people think. Is it important to have custody? What is the difference between sole custody and joint custody? When is sole or joint custody appropriate? This podcast answers all of these important questions. It then goes on to discuss how judge and arbitrators decide who will get “custody” of children.

This podcast is essential listening for anyone in a separation or divorce, or thinking of separation, and who has children. It explains what is judges think is important in these cases and why it may be better to stay out of court. Listen and learn what rights your children have in a separation and divorce.

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Child support does not end at age 18

January 22nd, 2013

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A family law lawyer will advise you that child support in Canada does not automatically end for a child when he or she turns 18 years old unlike several jurisdictions of the United States. In Canada, child support continues for children after their 18th birthday in one of two circumstances:

1. If the child is disabled, such that he or she remains dependent and cannot obtain employment that is adequate to meet his or her needs; or,

2. When a child is enrolled full-time in a program of education. In theory, that program of education must be career-oriented and not just an excuse for the child to remain dependant. There is a debate over whether a “victory lap” in high school, where a child who spends an extra year in high school, qualifies the child to continue receiving child support. Some factors to be considered are if the child is spending that extra year to hang out with friends, or to avoid entering the workforce or postsecondary education, rather than continuing their studies to meet the educational requirements of a particular program.

An important difference in child support for children over 18 years of age is that the child support tables no longer presumptively apply (although most judges use the tables as a starting point) and other arrangements can be made for their support to suit their particular circumstances.

For children over 18 years old, who are enrolled in a full-time program of education, their educational expenses may be special or extraordinary expenses. This means that the child’s parents must contribute to postsecondary education, tuition, books, residence, and other related expenses in proportion to their incomes.

This does not mean that children of separated parents are automatically entitled to have their entire postsecondary education paid for by their parents while their peers that have intact families have to pay for school. Judges are supposed to consider:

What arrangements would have been made for the children’s education if the family was still intact

What contribution the child should make to his or her own education. The longer a child spends in school, the more that the courts expect the child to consider. The courts expect children to apply for grants and scholarships and to incur a reasonable amount of student debt in light of the parents’ financial situation.

However, where it is not clear how these factors should impact on the amount of child support, judges err on providing support to the child.

It is common for the child support payer to pay full table amount of support while the child is at home from school and a reduced amount while away at school. The logic behind this is that a portion of the base child support is to pay for food and accommodation, but the parents are already sharing the cost of food and accommodation as special or extraordinary expenses. However, the recipient parent is also maintaining a home for the child to come back to, so some amount of support is appropriate to cover that expense.

Since the tables no longer presumptively apply, parents of adult dependent children are free to agree to other arrangements than the above to share the child’s expenses. Sometimes one parent pays all of the post-secondary costs and stops paying base child support. Sometimes the parents each agree to be responsible for specific expenses.

After a child turns 18, child support may not end, but the parents have more freedom over how they will share the child’s expenses. For further information regarding child support for children over 18, please consult a family law lawyer.

Commercial Lending and Intellectual Property

January 21st, 2013

This is a two part blog on the use of intellectual property in the commercial lending context. This blog will concentrate mostly from the lender’s perspective. The next blog will review some key considerations from the perspective of borrowers and businesses looking to obtain financing using their portfolio of intellectual property as security.

The knowledge economy provides both opportunities and threats in the commercial lending context. Opportunities abound as “gazelle companies”[1] require a suite of financial institution products and services and, as relative newcomers, are generally free from brand loyalty to a particular lender.

Threats exist in that the nature of the collateral, in the form of copyright, trademarks and patents, create underwriting and enforcement issues. The issues are not insurmountable. However, they require lenders interested in lending to intellectual property concerns to conduct a different type of due diligence from traditional bricks and mortar lending. This post concentrates primarily on enforcement issues relevant to lenders; the next blog will deal with underwriting business and legal issues of corporations with intellectual property assets seeking financing.

The most basic legal issue facing lenders is jurisdictional. The registration of security falls under the provincial sphere while the registration of intellectual property falls under the federal sphere.

This jurisdictional issue is not merely academic. The particular language of the Patent Act[2] and Copyright Act[3] can be read as requiring lenders to register their interests in patents and copyrights; the Trade-marks Act is not as direct in such a requirement.

Given there is no federal equivalent of a personal property registrar should the lender require the borrower to assign the intellectual property to the lender as a condition of financing? Obvious business reasons alone dictate against this condition. From a risk management perspective, the lender would then be potentially liable for intellectual property infringement claims or be obligated to defend the intellectual property. As such, lenders should avoid such drastic measures.

Unfortunately, at the date of writing, there has been no resolution on how to resolve the jurisdictional issues between the requirements of federal statutes to register interest and the provincial personal property regime.

Instead, various best practices have developed to ensure the lender has sufficient security in intellectual property as part of a financing. Well-drafted loan and security agreement may include the following:

1. Representations and warranties on the following:
2. Covenants
3. Reporting requirements:

In instances where the borrower is in special loans, lenders may demand that any royalty or licensing fees be subject to a lock box agreement.

As the above shows, “conventional” lending documentation will need to be amended where the collateral is primarily intellectual property. Commercial lenders should avoid the customary “check the box” due diligence and understand both the nature of the collateral. Borrowers who are borrowing on intellectual property assets should be prepared to answer questions from lenders about the nature of their collateral. Regardless, both lenders and borrowers dealing with intellectual property should be advised to seek qualified legal advice.

If you have any questions regarding commercial lending or intellectual property, please do not hesitate to contact the Commercial Lending department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

[1]Conventionally defined in the entrepreneurial community as a business with at least $1 million in revenue with a growth rate of at least 20% in the last four years.

[2]Section 51

[3]Section 57(3)

Congratulations you’re an executor….now what?

January 16th, 2013

Being named an estate trustee (or executor) feels like a great honour, particularly for the “first-timer”. Ask someone who has acted as an estate trustee what the experience was like and you will quickly learn that there is a great deal of responsibility and work involved.
Estate trustees have a broad range of responsibilities, including:

Filing taxes and obtaining clearances;
Managing trusts;
Disposing of estate assets (including real estate);
Settling debts of the estate; and
Making interim and final distributions to beneficiaries.

In fulfilling his or her duties, the estate trustee must manage the expectations of the beneficiaries in addition to meticulously documenting all transactions, communications and other estate administration work completed. Prior to making final distributions, and sometimes on an interim basis, the estate trustee is expected to provide beneficiaries with a full accounting of all work completed in administering the estate.

Needless to say, taking on the role of estate trustee may at times feel overwhelming. There is a substantial time commitment and learning curve when acting as estate trustee. Retaining a lawyer as soon as possible will significantly reduce the time you expend in fulfilling your duties, as well as your exposure to claims from beneficiaries and other third parties, including the Canada Revenue Agency.

Your lawyer will advise you of your duties as well as alert you to possible issues that may arise. Often most issues can be avoided with careful forethought and planning. Your lawyer will discuss your responsibility vis-à-vis the beneficiaries and assess the possibility of competing interests and what you can do to mitigate same.

No two estates are the same. Some estates take longer to administer, while others are straightforward. Complexity depends on a number of factors, including family dynamics, the size of the estate, the number of estate trustees, the number of beneficiaries, the types of assets, etc. A lawyer will help you understand the breadth of your role. You can then decide how much of a time commitment you are able to make, and conversely, how involved you need your lawyer to be. A lawyer can assist you with the administration of the estate or simply act as a quarterback, providing input and advice as needed or requested.

Being appointed estate trustee reflects an important trust relationship between the testator and the estate trustee. It is understood that the estate trustee will use his or her best efforts to ensure that the wishes of the testator are fulfilled; however, there is the added concern to ensure that the best interests of the beneficiaries are protected in the process of administering the estate. Retaining a lawyer will ensure that you have discharged your obligations in the most efficient manner, thereby upholding the wishes of the testator and managing the best interests of the beneficiaries.

Why Income for Taxes is Different from Income for Support

January 16th, 2013

Why Income for Taxes is Different from Income for Support

This episode discussed how a self employed person’s income for support can be much different, usually higher, than what that person shows on their tax return. This is the case even when the self employed person is being entirely honest on his or her tax return. Self- employed people are taxed differently from people on salary, and so they are treated differently in relation to both spousal and child support. It is critical that when one or both separated spouse is self employed, both spouses understand the difference in how support is calculated. Support may be much too low or much too high if both sides do not understand how support calculations work.

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For Toronto Law Firms, Bigger Isn’t Always Better

January 16th, 2013

“Ahhh, this porridge is just right” – Goldilocks

Choosing the right size law firm for your articles is similar to Goldilocks’ adventures at the three bears’ house. Just imagine the hot and cold bowls of porridge as big and small law firms. I use the Goldilocks analogy because I believe it captures the single most important consideration in deciding where to article – law firm size. Allow me to explain.

My articles have all of the following: I appear in court every week; I have carriage of my own files; I can ask for litigation strategies from experienced lawyers or rookies who remember what it was like to walk a mile in an articling student’s shoes; I have been exposed to six practice areas; I can learn from lawyers trained across Canada from New Brunswick to British Columbia; entrepreneurship is encouraged; I love working independently and in small teams; I have a lot of client contact; and, I know the building security system really well because I have put in a lot of hours, but I also believe that that’s the only way I’m ever going to learn anything or get anywhere.

There is downside too; no different than anywhere else, the trick is to article somewhere where you won’t sweat the small stuff. I feel like I may have heard this before as dating advice, but I digress…

Toronto Law office, Albert Luk

The impetus for most of the foregoing is law firm size. Firm size affects everything from resources and salary to scope of work and client interaction. I encourage all prospective articling students to think about the perfect firm size based on your own personality. It may be too early for you to say that you want to practice real estate or commercial lending, but it’s not too early to say whether you prefer the pace of Bay Street or Wine Country near the Niagara Escarpment.

Law firm size is not only important for articling students, but clients too. Over the holidays, the Globe and Mail ran a story entitled: “For law firms, bigger isn’t always better” in which one of DSF’s lawyers, Albert C. Luk, , made some interesting observations on recent trends in the Canadian legal industry. For the full article, For law firms, bigger isn’t always better – The Globe and Mail.

So, how do you like your porridge?

Forced to Retire Involuntarily

January 14th, 2013

IT TAKES A LONG TIME TO BECOME YOUNG – PICASSO

In a recent British Columbia Court of Appeal decision, a lawyer attempted to challenge his law firm’s mandatory retirement practices before the British Columbia Human Rights Tribunal. Mr. McCormick was a partner at Fasken Martineau Dumoulin LLP (“Fasken”), a limited liability partnership. The Fasken partnership agreement provided for a mandatory retirement provision once partners, such as Mr. McCormick, turned 65. Upon turning 65 Mr. McCormick was forced to retire involuntarily.

The central issue before the British Columbia Court of Appeal was whether a partner in a limited liability partnership is an employee of the partnership for the purpose of claiming the protection of human rights legislation against age discrimination.

The British Columbia Human Rights Tribunal and a British Columbia Supreme Court chambers judge on judicial review held that for the purposes of human rights legislation, a partnership may be treated as a separate legal entity from its partners and as the employer of a partner, with the result that the British Columbia Human Rights Tribunal has jurisdiction to hear a complaint by a partner concerning discrimination in his employment.

Madam Justice Levine writing on behalf of a unanimous three-judge panel disagreed and held that the “fundamental and well-established principle of law that a partnership is not, in law, a separate legal entity from, but is a collective of, its partners, and as such, cannot, in law, be an employer of a partner.”

Mr. McCormick has filed an application for leave to appeal.

While I am inclined to agree with Justice Levine’s position I would like to canvass three additional issues.

The first issue is the comprehensive post-mandatory-retirement framework provided for in the Fasken partnership agreement. Subject to the discretion of the managing partner, the agreement provides for transitioning equity partners to stay on board either as equity partners or in various other capacities after they reach the mandatory age of retirement. While I do not take issue with the managing partner’s unfettered discretion to run the business and make personnel decisions that are incident thereto, I would prefer to see a mechanism in place whereby an equity partner such as Mr. McCormick may appeal the managing partner’s decision.

The second issue, which is crystallized in this case in particular, is the relative bargaining power of the parties. In this day and age, few lawyers, or any person for that matter, can say they have spent nearly four decades working at the same place like our protagonist. That type of tenure has both its advantages and disadvantages and I can’t help but wonder whether any additional safeguards at common law or otherwise over and above the Fasken partnership agreement should have been further explored.

The last issue I will consider is a theme borrowed from corporate law. As many of you may know, in corporate law courts have disregarded the separate legal status of the corporation and imposed personal liability on directors, officers and shareholders where the corporation is used solely for personal benefit, this is referred to as piercing or lifting the corporate veil. While this is an extraordinary measure that typically stems from fraud or a similar type of misconduct the underlying analytical framework should not be thrown out with the proverbial bathwater. Indeed, while I am not suggesting that there was any wrongdoing in the instant case, I can’t help but feel as though Justice Levine’s analysis could have gone beyond the form and substance of the Fasken partnership agreement.

Share your thoughts about mandatory retirement, the differing treatment of equity partners of law firms versus officers of corporations and whether you agree with the British Columbia Court of Appeal.

Devry Smith Frank LLP Join the Alliott Group

December 28th, 2012

Membership with Alliott Group is limited to independent professional services practices which satisfy the Group’s stringent benchmarks and best practices. Membership is generally limited to smaller to mid-sized firms. This ensures that clients will enjoy a high standard of personal service whenever they are referred to another member of the Alliott Group alliance. We are proud to be the first Canadian law-firm admitted to Alliott Group. To read more about this announcement, click here.

RITE OF PASSAGE

December 11th, 2012

Recently, I had my first contested motion. I’ll save you the suspense, I got my butt kicked. But, as with everything else I’ve done at DSF, there was much to be learned from this experience.

The non-exhaustive list of takeaways, in no particular order, is as follows:

1. The drive to Cobourg Superior Court is much shorter than the drive home, particularly so, after you’ve lost;
2. A judge that asks no questions during submissions is just as challenging as a judge that asks many questions, even if that seems counter intuitive at first. In this instance, I had the former so allow me to explain.

As the non-moving party I had the benefit of hearing the submissions of my friend (not sure how many of you know that that’s how lawyers refer to one another before a judge, which is slightly different from the United States vernacular where lawyers refer to one another as brothers and sisters) whom I felt gave a succinct and reasonable position. I knew it was my turn because the courtroom suddenly fell silent and the judge turned his gaze squarely toward me.

I began by thanking my friend and submitting that my position was not remarkably different from hers, rather the difference was slight or negligible. I thought this was important to do because I wanted the judge to feel as though a ruling in my favour could be achieved notwithstanding he accepted most of her submissions. I then turned my attention to my main issues. Then I rambled on about something or the other. And then I may have rambled on some more. My entire submission only lasted 3 or 4 minutes, but it felt like much longer than that. And therein lays my point. Without a judge interacting and putting questions to me, it was difficult to gauge how much time to spend on each issue, whether I should have refuted my friend’s submissions, or, most importantly, where the judge stood on any or all of the issues before him.

After briefly considering both sides, the judge decided in favour of my friend. I was unhappy to be sure. The worst part was that I had my whole drive home to second guess everything I had said…

Outside the courtroom I briefly stopped and chatted with my friend. She was incredibly gracious and professional in her victory; I wish the same could be said of me….In any event, in this post’s on-again-off-again something extra segment, I would like to leave you with some words of wisdom that my friend imparted on me during our chat…she said not to worry, when she was an articling student she didn’t win a single motion, you read that correctly, not a single motion, but she assured me it would get better, you see this is all part of the rite of passage…

How to Have an Enforceable Marriage Contract in Ontario

December 10th, 2012

How to Have an Enforceable Marriage Contract in Ontario

This episode on the enforceability of Ontario marriage contracts (called “pre-nups” in the United States) was recorded live at intimate and interactive discussion of family law issues. This episode contains critical information for anyone who may need a marriage contract or cohabitation agreement: how to make that contract enforceable. It goes over the basic rules for making a marriage contract. John Schuman also describes some of the common reasons why judges refuse to enforce marriage contracts and cohabitation agreements. This episode should be mandatory listening for people considering a marriage contract or cohabitation agreement and people who know someone who should have such a contract.

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Deciding How to Resolve Matters After Separation

December 5th, 2012

Deciding How to Resolve Matters After Separation

There was a time when getting divorced meant going to court. Going to court meant fighting it out. However, that fight did not work out well for many families. It almost never worked out well for the children. It certainly did not make any sense with “no fault divorces” that recognized that sometimes people just grew apart and divorce was not always the result of someone acting badly.

Now there are options for resolving issues after divorce. While a full out fight is sometimes necessary, it usually is not. There are alternatives, even when the separating spouses strongly disagree with each other. The options can keep tensions, emotions and legal fees down. They are better designed to resolving matters in a child friendly manner.

Negotiation, mediation, mediation-arbitration, arbitration and collaborative practice are all alternatives to court that usually have outcomes that makes separated spouses happier than a court fight. What are these choices? Which one is right for you? Listen and find out. This podcast provides critical information for separating spouses that can impact the rest of their lives. It should be mandatory listening for everyone going through a separation or divorce.

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DSF Lawyers Successful at Ontario Court of Appeal

November 30th, 2012

George O. Frank, and Maya Krishnaratne were counsel for the successful insurer in a recently released decision of the Ontario Court of Appeal relating to payment of Statutory Accident Benefits. The case involved a dispute between two insurers as to who was responsible for paying no-fault accident benefits to an injured “owner/operator” of a commercial delivery vehicle of which the owner/operator was an occupant at the time of the accident.

Pursuant to the Owner Operator agreement between the owner/operator and the transport company, the owner/operator provided a truck and driver to the transport company to deliver cargo on behalf of the transport company’s customers. Insurance coverage was placed on the truck pursuant to a “fleet policy” arranged by the transport company. Although the truck in question was listed on the fleet policy, the owner/operator was not named as an insured on the fleet policy.

The owner/operator owned a personal use vehicle which was insured pursuant to a policy which named the owner/operator as insured. The insurer on the fleet policy took the position that the injured owner/operator had to claim accident benefits from the insurer of his personal vehicle.

The court’s decision turned on the interpretation of section 66 of the Statutory Accident Benefits Schedule. Section 66 provides that where a vehicle is provided for an individual’s regular use by a “corporation, unincorporated association, partnership, sole proprietorship or other entity”, the individual will be deemed to be a named insured on the insurance policy covering that vehicle, even if not named as an insured on the policy.

Similar situations had been addressed by several courts and arbitrators in a lengthy string of decisions. In those cases, the arbitrators and courts focused on the question whether the truck was provided for the regular use of the owner/operator by the transport company. In the majority of those cases, the answer was no – the truck was provided by the owner/operator for the transport company, not the other way around. The Court of Appeal held that these previous decisions had addressed the wrong question. The question should have been whether the owner/operator could provide the truck to himself for his own regular use. The Court held that the wording of section 66 of the Schedule was sufficiently broad to include such a situation, and that the question should be answered affirmatively. The truck was provided for the regular use of the injured owner/operator, and accordingly the owner/operator was deemed to be a named insured on the fleet policy covering the truck. The insurer on the fleet policy had to respond to the owner/operator’s claim for Statutory Accident Benefits, and the insurer of the personal vehicle did not.

Separation and First Decisions

November 25th, 2012

Separation and First Decisions

This episode, hosted by John Schuman, the head of the Family Law Group at Devry Smith Frank LLP, discusses how spouse know they are separated and what steps they have to take first. It explores some of the initial issues that spouses, or unmarried partners, face at the end of their relationship. Those first decisions after separating can have a profound impact on the rest of the lives of each spouse – and the lives of their children. It can even affect how much money everyone will have at the end of it all.

Podcast: Play in new window

Debts not released by bankruptcy – Professional Student Loans

November 22nd, 2012

One of the main purposes of the Bankruptcy and Insolvency Act[1] is to allow debtors in unfortunate circumstances to get a fresh start, free of their debts. With limited exceptions, an order of discharge from bankruptcy releases the bankrupt from all unsecured debts. One of the exceptions is a student loan from the government, under the Canada Student Loans Act, the Canada Student Financial Assistance Act, or any similar provincial law. If you borrow money from the government to fund your education, bankruptcy will not get rid of that debt and you will need to pay it back after your bankruptcy.

There are also several court decisions[2] in support of the idea that private student loans that are used to fund professional degree educations, such as medicine, dentistry, law, chiropractic college and others, should also be repaid and not be released by discharge from bankruptcy. Loans from banks are not considered to be the same as government student loans under the BIA, and would generally be released upon discharge. These loans are granted as a result of business decisions of banks, rather than under provincial student loan laws. However, the courts have found, in certain circumstances, that private student loans should be treated similarly to government student loans in a bankruptcy.

The reasoning is essentially that, unlike other debts, a student seeks a loan from a bank to fund her education with a view to eventually graduating and earning a substantial income through her professional degree. The bank lends funds on the expectation that it will be repaid years down the road from the professional’s higher salary. Similarly, the student expects to graduate with a significant amount of debt owed to the bank for her education, and that she will repay that debt from her higher salary obtained through that education. The court may not allow a student to take loans to fund a professional degree, then attempt to get out of her repayment obligations by filing for bankruptcy.

Each case depends on its own circumstances, and to date, the BIA only recognizes government student loans in section 178(1) as a specific debt not released by order of discharge. If the private student loan is only a small part of a long list of debts of the bankrupt, for example, a court may not treat the private student loan any differently from other debts released by order of discharge. Creditors, such as banks and private lenders, should seek legal advice where a professional student loan is involved in a bankruptcy. There may be options available to collect on a private student loan even in the face of a bankruptcy that can result in much higher recovery for the creditor than originally thought.

If you have any questions regarding section 178(1) debts not released by order of discharge in a bankruptcy, please contact a lawyer in the Bankruptcy Insolvency and Recovery Practice Group at Devry Smith Frank LLP. We advise creditors, debtors, receivers and trustees with regard to large and small restructurings, including personal and corporate bankruptcy, consumer and Division I proposals and corporate restructurings under the CCAA.

[1] R.S.C. 1985, c. B-3, as amended.

[2] See, for example, Re Korenic, 2005 CanLII 28179 (ON S.C.), Re Ament, 2006 CanLII 30583 (ON S.C.) and Re Manning, 2011 ABQB 566.

Managing your legal bills – some tips from the pros

November 21st, 2012

Many times, people involved in a matrimonial dispute are faced with their first real experience using a lawyer. When they receive their first bill, they are sometimes shocked, and frightened, by the financial cost of the dispute, especially in “high conflict” cases. Below are some tips to help you manage your legal costs.

First, you must remember that every time your lawyer works on your file, you are billed for the lawyer’s time – no matter whether you send a one line email or leave a three minute voicemail message. It is important to manage your communications with your lawyer to optimize your spending. Rather than calling and emailing your lawyer several times a day whenever something occurs to you that you need to communicate to someone, ask yourself if it is an emergency that your lawyer needs to know about right away. If it is not, keep a journal, and send one email per day or every few days. This keeps your lawyer apprised of your situation, but in a more cost effective manner.

Second, it is important to remember that a separation is a very emotional and stressful time in your life, and it is perfectly understandable that you want to talk to someone about it. It may be hard to talk to your friends, and you may be tempted to turn to your lawyer to fill that role. Don’t forget, your lawyer charges you by the six minute increments, so this could be very expensive. It would be better to ask your lawyer to recommend a divorce coach or a therapist for you to work with, at a much lower hourly rate. Those professionals can help you work through the emotions related to your separation, and let your lawyer focus on the legal issues.

Third, when your lawyer gives you advice, you must trust that they are doing so with your best interests always at the forefront. You are always entitled to an explanation from your lawyer about their advice. If you doubt the advice that you receive from your lawyer, you can always seek a second opinion. However, arguing with your lawyer about his or her advice will only cost you money and may make it difficult for your lawyer to help you.

Fourth, you must remember that your lawyer acts on your instructions. If your lawyer tells you that you are being unreasonable, that is their advice, which is what you are paying for. However, if you insist on your lawyer taking an unreasonable position, you should expect that will be very expensive for you. You may make your case more complicated that in needs to be. A judge or arbitrator may order you to pay your spouse’s legal bills if you are unreasonable. Taking unreasonable positions is one of the fastest ways to drive your legal bills through the roof.

Finally, when you and your lawyer first meet to discuss your case, your lawyer crafts a strategy to move your matter forward in the fastest, most cost efficient manner. Sometimes, that means going to mediation/arbitration or some other form of alternate dispute resolution, and sometimes that means Court. Whatever strategy you and your lawyer choose, your lawyer will maintain that strategy in their communication with your spouse’s lawyer. Sometimes, sending several letters a week to the other lawyer does not generate a response, as the other lawyer becomes inundated with your lawyer’s communication. Other times, the other lawyer becomes frustrated with your lawyer, and starts a letter-writing campaign in response. This will only serve to escalate your legal bills and will never make things happen faster. You should take your lawyer’s advice with respect to how often and about what issues correspondence should be sent to another lawyer or your former spouse.

If you follow the above tips, then you should be able to keep the cost of your divorce low. However, even if you follow all of the above advice, your spouse may act in way that drives up your legal bills. Everyone is entitled to a day in court, and so is your spouse, even if his or her position makes no sense. All you can hope is that the judge or arbitrator will make your spouse pay some of your fees back. You should talk to your lawyer about how much each step of your case is going to cost and whether it is worth it.

Tips for completing your Family Law 13.1 Financial Statement

November 21st, 2012

Many people faced with having to complete a 13.1 Financial Statement find it a daunting task. Here are a few tips to simplify the process.

The idea of completing an accurate monthly budget has some people collecting bank statements and credit card statements for the past year, and averaging out their expenses over that period, and then breaking them down to a monthly figure. Although it is important to be realistic in your budget, this exercise is not necessary. It is ok to “ballpark” how much you spend on groceries in any given month. Although it used to be that spousal support would be loosely based on the “Budget” section of your Financial Statement, now that the SSAGs have become widely accepted in Court, the “Budget” has become less important. It is still important to ensure that your budget makes sense in a global way. Your budget should not be wildly off base, or your spouse will ask to see all the bank statements and receipts. If your budget indicates that you are running a deficit every month, but you do not have any corresponding increase in your debt, the accuracy of your Financial Statement may be called into question.

With respect to the property section of the 13.1 Financial Statement, it is designed to capture three specific dates: the date of marriage, valuation date (which is the date you separated) and today. Any property that you owned between your date of marriage and valuation date, but did not own on either of those pertinent dates, is not entered on your Financial Statement. The exception to this rule is if it is property that you have disposed of within the past two years. Part 8 deals exclusively with property that has been disposed of during the past two years. Perhaps the easiest way to understand how to complete the property section of your Financial Statement is this: If you took a photograph of your financial situation on the date you were married, the date you separated, and the day you are completing your Financial Statement, these are the figures that you put into the respective columns. Finally, the Financial Statement that each party completes addresses only the property that they have an ownership interest in. For example, if your matrimonial home is in your spouse’s name, you do not put it on your Financial Statement because you do not “own” it. Similarly, if you lease your vehicle, it does not get entered on your Financial Statement because you do not “own” it.

When you are completing your Financial Statement, you should keep all of the documents that you relied on to prepare the Financial Statement, so that you can give them to your lawyer together with your draft Financial Statement. This step will save you a lot of time and hassle in the future, as your lawyer will most certainly ask for these documents. If you are involved in a Court proceeding, it is important for you to know that a Court will not accept your Financial Statement if you have not attached your last three years’ Notices of Assessment (the form you receive from the CRA that has your income tax refund cheque attached to it). You can order copies of these documents by calling 1-800-959-8281. You should always do this as soon as you are asked to fill out a Financial Statement because the process of receiving them takes about six weeks.

Financial Statements are important no matter what path you have chosen to resolve your matrimonial matters – litigation, collaborative practice, negotiation of a Separation Agreement, or mediation/arbitration. The most common reason that resolution of matrimonial matters is set aside by a Court at a later date is for lack of financial disclosure. The thinking is this: if you did not know what you were giving up because you did not have all of the information you needed, how could you have made an informed decision about whether or not it was the right choice for you? This is true when entering into a Marriage Contract as well. Think of it this way – if you are releasing your future right to receive spousal support, but you do not know how much your spouse earns, you may have made a different decision if you had all of the information available about your spouse’s income and income potential.

Articling takes you places

November 16th, 2012

Here is a recount of an exceptional day at DSF that took me to 6 places and some 450km all in one day:

1) Newmarket: Criminal Court Appearance

2) Bracebridge: Commercial Real Estate Closing

3) Barrie: Law Office

4) Don Mills: DSF Office

5) Liberty Village: Franchise Purchase Closing

6) Etobicoke: Home Sweet Home

First Court Appearance

November 16th, 2012

As promised I will share with you my first court appearance. As a summer student at the firm I observed a few court appearances with associates at the firm, however, I did not get a chance to appear before the court on my own. So you can imagine that my first day of articles I was very excited that my time will eventually come and I would attend court all on my own. Well that day came sooner than expected; at around noon first day of articles during a welcome lunch, one of the associates asked me to attend an assessment hearing for a small claims bank file. I was excited, scared and surprised at the chance to attend court on the second official day of my articles. I stayed up late reviewing small claims rules, reading our pleadings and materials and practicing my submissions. The day at court was an amazing experience, the deputy judge was pleasant and very patient with everyone he heard before me. I briefly summarized what I sought from the court and answered a few short follow up questions. Before I knew it the deputy judge awarded what I sought, complimented me on attending Western Law and wished me the very best in my legal career. I can tell you three months into articles and many more court appearances on matters ranging from contract law to insurance law, to real estate, to family and even a criminal matter I never had it as good as that first day in court.

Notice Period for Termination of Employment

November 16th, 2012

Notice Period for Termination of Employment

A recent Ontario decision, Hussain v. Suzuki Canada Ltd, awarded the plaintiff, a terminated employee, 26 months of reasonable notice for termination of his employment without cause. This is welcome news to terminated employees because the court awarded a notice period in excess of the usual 24 month upper limit. However, before disgruntled employees that have been recently terminated start asking for 26 month notice periods they should be aware that they still need to meet Bardal factors to even reach the assumed cap of 24 months. Furthermore, they should be aware of the exceptional circumstances that justified the increase of notice period in Hussain. The terminated employee in Hussain¸ worked continuously at Suzuki for almost 36 years and had no notice or even inkling of his termination. His last position was an Assistant Warehouse Supervisor in charge of 11 other employees, a position that Suzuki acknowledged was very important and valuable. Another key factor in the decision was the age of the plaintiff, who was almost 65 years old at the time of the termination. Despite the exceptional facts of the case, this decision is a good precedent for employees fighting to get a fair and just award to compensate them for a wrongful dismissal.

You wrote what? Defamation in the internet age

November 8th, 2012

The internet has been described by some as a forum for righteous indignation. Many internet operators monetize their websites by operating rating sites, blogs which allow comments to be left or discussion forums. The ease in which comments may be made raises liability issues for both the writer and the websites on which such comments are made.

Defamation generally describes a communication, whether written or oral, that harms another’s reputation. A defamation of character claim generally exists where: (i) a false statement was made; (ii) the statement caused harm and; (iii) the statement was made without adequate research into the truthfulness of the statement. Various defenses do exist which are not the topic of this blog post.

Even prior to the popularity of social media sites, the Ontario Court of Appeal in Barrick Gold Corporation v. Lopehandia, recognized that defamation on the internet was distinct from traditional mediums. The speed and reach of the internet made any comments defamatory in character more easily distributed and believed.

For the purposes of this blog, we are going to concentrate on two particular issues specific to defamation as it occurs on the internet:

The risk of defending an action in another jurisdiction.

If an Ontario resident reads a defamatory comment about themselves made by someone in Florida, where should they sue? Since 2010, American law states that defamation of character judgments in foreign jurisdictions will not be recognized in American courts if they conflict with the First Amendment (freedom of speech rights). Thus, the Ontario resident would have to travel to Florida to begin an action, lest they sue in Ontario and try unsuccessfully to enforce a foreign judgment in Florida where a First Amendment defense is likely to be raised.

In Ontario, a case such as Bangoura v. Washington Post reinforces the traditional common law approach of courts assuming jurisdiction where there is a real and substantial connection with the province. For example, a defamatory comment made about an Ontario resident by a blogger in Nevada where only 2 of 2,500 readers reside in Ontario may not constitute enough of a connection to commence an action in Ontario.

Publishers Liability

Under “traditional” media, a publisher who publishes a defamatory statement will be held to be equally liable for the statements made by the author of the work as the author herself. People who distribute publications (bookstores and libraries) are generally not held to the same degree of liability. The rationale behind this distinction is that publishers have the opportunity to review the content and can remove defamatory material while distributors may not have the same opportunity. However, do we treat websites as publishers or distributors?

Canadian case law on this matter is sparse at the time of the writing of this blog. The Supreme Court of Canada in Crookes v. Newton ruled that merely hyperlinking to defamatory material does not give rise to a defamation of character claim. Hyperlinking, as a passive reference to something that exists, was differentiated from repeating a defamatory comment. Where the website is actively repeating defamatory material, the website owner would be seen as closer to a publisher than a distributor and bear the same liability as the provider of such content. As such, the Supreme Court of Canada made the distinction between permitted conduct of publishing a hyperlink versus presenting the hyperlink in a manner which repeats the defamatory conduct.

A conversation with our American colleagues indicates that American law takes a similar approach. As we have been informed, American laws will not recognize a defamation of character claim for passively hosted third party content; but the defense is eroded if the website owner takes a more active approach to amending, editing or removing content. In other words, the more the website owner acts like a publisher, the greater its liability.

This has lead to the strange result that doing nothing as a website owner is better than doing something when it comes to defending against defamation claims.

Defamation of character is generally a complex field of law. When coupled with the online component, it becomes even more complex. As such, qualified legal advice should be sought if you are operating a website containing opinionated content.

If you have any questions regarding online defamation, please do not hesitate to contact the Intellectual Property or Business and Corporate Services department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

Use it or lose it: some tips to ensure you maintain your trade-mark rights

November 8th, 2012

Under the Trade-marks Act, the owner of a registered trade-mark is granted the exclusive right to the use throughout Canada of the trade-mark. However, in order for a trade-mark owner to maintain that right, the mark must be properly “used”.

Failure to use a registered trade-mark for a period of three years from the date of registration or for an uninterrupted period of three years, provided there are no special circumstances that excuse the absence of use, may result in the trade-mark registration being expunged.

It is important to note that non-use for a three year period does not result in automatic expungement. In order to be expunged for non-use, a written request must be made by a third party for the Registrar to give notice to the registered owner of the trade-mark requiring them to produce evidence of use, prompting what is commonly known as a Section 45 proceeding. Be that as it may, failure to use a trade-mark for a long period of time does place a registered trade-mark owner’s trade-mark rights at risk.

Here are some important issues that the owner of a registered trade-mark should consider in order to ensure their mark remains in “use”:

Affix your trade-mark to your wares or services. In order for trade-mark rights to be created and maintained, a mark must be affixed to a specific product, or used in the provision of a particular service. A mark will not be considered as in use in association with wares unless it is marked on the wares themselves or on the packages in which they are distributed or unless notice of an association with the wares is given to the person receiving the purchased products. For services, the “use” requirement is somewhat more lenient – a trade-mark is deemed to be used in association with services if it is used or displayed in the performance or advertising of those services.
If your services are advertised on a web page, prominence should be given to the mark on the page. Simply including a mark as part of a domain name may not be sufficient evidence of use.
If possible, a trade-mark should always be indicated as such using the ® symbol for registered trade-marks and the ™ symbol if the trade-mark is unregistered. A trade-mark acknowledgement should always be included in advertising, promotional materials and on packaging.
Trade-mark owners should ensure that all third parties, for example licensees, also use the mark correctly. Authorized third-party users of a trade-mark should be licensed, and all licensing agreements should be written carefully, signed, and enforced. The agreement must set standards concerning the licensee’s use of the trade-mark, and the quality of products or services with which the trade-mark will be used.
In the course of a Section 45 proceeding, evidence of use must be shown for each of the wares and services mentioned in the trade-mark registration.

If you have any questions regarding Section 45 proceedings specifically or trade-mark registration in general, please do not hesitate to contact a lawyer or trade-mark agent in the Intellectual Property department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

The Expropriation Act

October 31st, 2012

Over the last couple of weeks I completed a research assignment on land expropriation, the tort of injurious affection and business loss. When we studied land expropriation in law school, I remember thinking to myself that land expropriation would turn out to be as practical as calculus…not surprisingly, I would be wrong.

In any event, my research focused on the Toronto-York Spadina Subway Extension project near the location where the new Finch West station is being built. This research assignment was of particular interest to me because I can trace much of my formative years and adolescence back to the intersection of Finch and Keele, more on that later.

The main reason this research assignment was so interesting to me, however, was because I had no idea where to begin. So, I did what any reasonable articling student would do under the circumstances – I googled it. When that didn’t turn up anything I thought that the best course of action would be to call someone at the TTC, after all, I reasoned, that if our client is having this problem with TTC construction, others must be too. So I called the TTC, the City of Toronto, City Officials, you name ‘em, I called ‘em.

Several of those calls led nowhere and I was starting to give up hope…until, one person told me to check the Expropriations Act (the “Act”). But, our client was not having their land expropriated, I explained, we simply wanted to make out the tort of injurious affection and business loss. The person replied, “look, I can’t tell you any more than that, just trust me…” With nothing to lose, I looked up the Act and, sure enough, injurious affection is defined under section 1(1)(b). The Act further provides for compensation for injurious affection under section 22. Cases brought under the Act are heard before the Ontario Municipal Board. Learning about the OMB’s adjudicative process was a nice change of pace from the Rules of Civil Procedure. All in all, this has been one of my favourite research assignments because of the opportunity to critically think my way to an answer and how much I learned.

If you’re still reading and wondering why Finch and Keele holds a special place in my heart it’s because my father had a small auto business in the area for more than ten years. My brother and I spent many summers there; we were in charge of washing the cars and readying them for customers. My dad also taught me to drive in and around that area, of course, I may or may not have been thirteen at the time, but that’s a story for another blog entry………..

Guardianship decisions – no “minor” matter!

October 30th, 2012

Preparing a Will is something many put off as something we all know we should do, but something we really just don’t want to think about right now. Planning for what happens after one’s death can, understandably, be thought of as morbid and unnatural – if nothing else, downright uncomfortable. Add to that the consideration parents must give to guardianship and it’s no wonder half of all Canadians do not have a Will.

As a parent I can think of only one thing that would make me more uncomfortable than having to decide who looks after my child should anything happen to me – letting someone else decide. In Ontario, if both parents die, the decision regarding guardianship is left up to the courts. The court will have to decide between competing relatives and may even appoint the Children’s Aid Society as guardian.

It would take less time, money and effort to make guardianship decisions now than leave these decisions to be made by others who either do not know what your wishes are or are unable to honour them because the law does not permit them to do so.

Your lawyer is best suited to advise you on what to consider when naming a guardian. Your lawyer can also identify and make provisions for other concerns that may arise, such as education trusts and other discretionary trusts for children. When making guardianship decisions, remember – this is no “minor” matter!

The Top Five Do’s and Do Not’s of Separation and Divorce

October 24th, 2012

Separation is something that most individuals never planned on happening to them. This article offers some simple tips to help you take the first step on the road to resolving and recovering from your Separation.

1. Do not involve your children in the breakdown of the relationship. Children are often the ones who truly lose in separation and divorce. You have to remember that it was you and your spouse who have decided to separate and not the children. Even if you were not the one who decided you wanted to separate from your spouse, you are separating because the relationship you and your spouse had is no longer what both of you is looking for. This has nothing to do with your children. Your children are not there to emotionally support you through this process and should not take the place of your friends or family counsellors. They should never be asked to deliver messages or support cheques. These activities put them directly in the middle of the divorce and children, even teens, should never be directly involved in such adult matters.

2. Do talk to your children about how they feel. Children are smart and will know that the family is changing. When you and your spouse have decided to separate, you should have a conversation with them to reassure them that everything will be okay, however the conversation should not stray from how they are feeling. If you and your spouse decide on a primary residence and access schedule for the Child or children, then the Children should not be “questioned” or pressured by either parent to decide who they want to live with. Work with your spouse, your lawyers orcounsellors to determine what is in the best interests of the children and work with the children to implement those plans. You will have a more well-adjusted child as you work through your separation as a family. Remember that your Children are part of both of you, and so they should never hear negative feelings that you may have about the other parent.

3. Do seek counseling, even a few sessions, for yourself and for your children. Separation and divorce is extremely stressful and many professionals liken it to a death in the family. Seeking the help of a registered psychologist will help you work through those feelings of loss that often lead to bitterness and anger toward your former spouse. They will help your child with any feelings of guilt and loss they may be feeling. Your family doctor will be able to direct you to one of these professionals and often these resources are covered by health insurance when you are referred by a family physician.

4. Do consult with a lawyer. While many spouses try to tell the other that retaining lawyers creates animosity between them, it is actually often the opposite. There are reasons that your marriage is breaking down and an inability to communicate is often one of the key reasons. The right lawyer will give a necessary “buffer” between you are your spouse. A lawyer will also advise you as to your rights and obligations consistent with the law.

Finally, even if you and your spouse are able to agree as to the terms of spousal support, child support, and a division of assets , a lawyer will need to explain the agreement to you and be able to suggest clauses that should be included in the agreement based on recent caselaw to ensure the agreement is enforceable and adequately protects you. Without an enforceable agreement all your hard work together may be all for nothing down the road. Remember that lawyers are people too and finding the right “fit” with your lawyer is important. You should research your lawyer and find one that you feel will best suit your personality and goals.

5. Do seek out government resources to help you locate assistance in your community. There is a lot of help out there. Use this support to find the help you need to work through this difficult time. Courthouses where Family Law matters are dealt with have Family Law Information Centres (Often referred to as “FLIC” offices) that will help you determine what resources you need. In Ontario, a list of courthouses where these FLIC offices are located can be found at www.attorneygeneral.jus.gov.on.ca.

THREE QUESTIONS EVERY FRANCHISEE SHOULD ASK

October 24th, 2012

Have you always wanted to own your own business? Sure there are a plethora of reasons for doing so, but we all know the success rate isn’t as promising as we would hope. For this reason, many entrepreneurs find themselves exploring the opportunity of becoming a Franchisee with the expectation that a franchise’s goodwill and know-how will become the factor that sets them apart and ultimately leads to success. With food brands and chains comprising the overwhelming majority of franchising options in Canada, the remaining franchise industry has largely been dominated with business-to-business consulting, hair and nail salons/spas, commercial/residential services, seniors/home care and services, and children’s products and services. Further, as the opportunities available continue to expand, so too will the number of individuals exploring these growing markets. However, before going too far we recommend, at the very least, that you ask yourself these three questions:

1. What Are Some Factors I Need To Consider Before Buying A Franchise?

Purchasing a franchise can be one of the largest investments in your life. Not all franchises are built the same. What are some typical factors to consider before buying a franchise?

Size of investment. Can you afford the franchise fee and set-up costs? Many franchises fail because there is simply not enough money to operate the franchise during the early stages, as the initial investment was too great.

Industry. Is the industry a growth industry or are there too many competitors and franchisees? A potential franchisee should give careful consideration to the growth potential of the franchise industries they are exploring.

Reputation of the franchise. A reputable franchisor can provide training, support and guidance. A poor franchisor can cause headache, frustration and stress.

Legal counsel can advise franchisees on the factors to consider when buying a franchise, the right questions to ask and the legal agreements which need to be in place.

2. What Is The Process Of Purchasing A Franchise In Ontario?

A fully informed franchisee usually follows the following process in purchasing a franchise:

Research franchise opportunities
Receive and review an information package known as a “Franchise Disclosure Document” with legal counsel
Submit a Franchise Application Form
If accepted, enter into a Franchise Agreement
Build out franchise

3. What Duties Does A Franchisor Have To Franchisees?

In Ontario, the Arthur Wishart Act (Franchise Disclosure) 2000 (the “Act”) governs the relationship between franchisors and franchisees. The Act requires the franchisors to:

Provide accurate, clear and concise disclosure documents
Treat franchisees with a duty of good faith and in accordance with reasonable commercial standards
Ensure franchisees are not misrepresented

Questions? Devry Smith Frank LLP can assist. We have advised franchisees on the purchase and sale of franchises of all industries and sizes. Please call us today at 416-449-1400 to arrange a consultation.

Welcome to the Court, Counsel

October 24th, 2012

Recently, I went before a judge to make my first ever Superior Court appearance on a motion to add a party to an action. The motion was unopposed. My motion was second on the docket but the court clerk asked that I go first as my motion would take the least amount of time of the motions scheduled to be heard that morning.

Going first was both a blessing and a curse. It was a blessing because it allowed me to just get the motion over with sooner, which would allow my nerves a reprieve. On the other hand, it was a curse because I could not read the judge’s body language, what if her car didn’t start that morning, or she had a bad cold or her dog had an accident in her front hallway, the last thing she’d want to do is hear my motion to add a party to my action…

Ready or not, there I was standing at the podium, flanked by my tabbed and highlighted Rules book on one side of me, my draft order on the other side of me and only my motion record and whole legal career in front of me. It was evident that I was nervous and I told the judge as much. She assured me there was no reason to be. The judge was kind and patient. So, slightly less nervous, I proceeded; I probably spoke too quickly and too quietly, those who know me however can attest that that’s normally not an issue for me…

No matter, I began by stating what the motion was for – to add a party and amend the statement of claim accordingly – and continued by briefly reciting the chronology of events that led up to the motion and concluded with the Rules we were moving under; the judge listened intently and asked me to clarify a few points, which I did. Then the judge asked me to pass up a copy of the draft order for her to sign. Motion ordered to go as asked.

Just before I stepped away from the podium the judge remarked: “welcome to the Court, counsel”.

And, just like that, my first Superior Court appearance was in the books.

N.B. Me, counsel?

Average day in a life of an articling student

October 23rd, 2012

I would like to echo Eldad’s sentiments in his first entry to this blog as an articling student at DSF. Spare time is hard to come around these days, however, both of us are determined to post these blogs and share a little about our experiences with you.

I know one popular question among law students goes a little something like this: “what is an average day in a life of an articling student?”. The short answer is there is no such thing as an average day and part of the learning process is adapting to a work environment that changes not only on a daily but hourly basis. The good news is that your day can change from a dreaded Monday to a day you are preparing for your first court appearance in a matter of minutes.

If you would like to read about my first court appearance stayed tuned to the blog, I will endeavor to find the illusive spare time and continue blogging.

Privacy and the Internet

October 16th, 2012

By Albert Luk

What you need to know about privacy laws and the internet?

The Stop Online Privacy Act introduced by the United States Congress in 2011, though ill-fated, reveals one means law-makers are using to attempt to regulate the internet. Drawing far less attention, although equally as important, are quieter efforts to regulate the internet through privacy laws.

In the social media age, website monetization depends on two primary tactics. The first- “drawing eyeballs” to a website- may require the use of large scale marketing via email. The second- online behavioral marketing – depends on the collecting and organizing visitor and user data.

Canadian regulation of email marketing campaigns and on-line behavioral marketing has been relatively quiet until recently. However, changes are on the way. Anyone engaged in email marketing and online behavioral marketing had best be aware of changing practices.

Canada’s recently passed Anti-Spam Legislation (formerly known as the Fighting Internet and Wireless Spam Act (“FISA”)) regulates communications by Canadian companies including email or texts. One of the fundamental tenants of FISA is that marketers may only send emails to those who opt in to receive them. FISA was passed in 2010 but information bulletins speaking to the practicalities of FISA were only released in October 2012. The anti-spam bulletins can be found here. (DSF blog posts on the topic can also be found here and here ).

In June of this year, the Office of the Privacy Commission of Canada issued its policy position on online behavioural advertising. Unlike FISA, the gathering of information for the purposes of online behavioral advertising can be obtained through an opt-out consent regime under certain conditions.

Read together, FISA and the Office of the Privacy Commission of Canada’s position on online behavioural advertising means that internet marketers can no longer rely on a “standardized” privacy policy since one relies on an opt in regime while the other an opt-out regime. Depending on the purpose of the information sent or collected, customized privacy policies must be developed to address both the solicitation and collection processes.

Overlapping Canada’s regulatory efforts, internet marketers operating in both Canada and the United States must also be aware of the United States’ Federal Trade Commission’s stance on On-line consurmer privacy. Anecdotally speaking, given the larger budget and reach, the FTC has been an assertive regulator of on-line privacy breaches.

Buying foreign firms a growing path to expansion

October 16th, 2012

Devry Smith Frank LLP and Albert Luk, one of our business law lawyers, was quoted again recently in The Globe and Mail. For a full story, please read: Buying foreign firms a growing path to expansion

Anti-Spam Legislation Update

October 16th, 2012

Further to my earlier blog post on Canada’s Anti-Spam Legislation (A fine line between marketing and spam) it is expected that the Act will come into force later this year, or early 2013. Two sets of related regulations have been issued, one by the CRTC and one by Industry Canada. While the Industry Canada Regulations have not yet been finalized, final regulations were published by the CRTC in March , which include a number of revisions responding to some of the concerns raised by the public in the original draft of the proposed Regulations. The revisions allow for some more flexibility while at the same time providing some clarification on key issues such as what contact information needs to be included in a request for consent, the form consent may take and less restrictive and technology-neutral means of communication.

The final CRTC Regulations include the following changes from those originally proposed:

Flexibility with respect to the type of contact information that must be provided. Senders of commercial electronic messages (“CEMs“), may now provide either a telephone number, an email address or a web address. The original proposal seemed to require the provision of all three, as well as a physical mailing address.
The language has been revised to state that if required information is to be accessible from the “world wide web”, it must be “readily accessible” and that the required unsubscribe mechanism must “be able to be readily performed”. The original proposed Regulations specified these requirements with reference to a maximum number of “clicks”.
The revised Regulations now indicate that consent for the receipt of a CEM may be obtained orally, as well as in writing, as the original proposed regulations provided. In a subsequent Regulatory Policy issued by the CRTC, the Commission further indicates that consent obtained “in writing” includes electronic forms of consent.

The above noted changes provide some certainty to businesses trying to comply with the legislation and also make compliance somewhat less onerous.

The related Industry Canada Regulations are expected to been finalized shortly. One of the primary objections to the draft Industry Canada Regulations has been the definition of a “personal relationship”, in the context of one of the exceptions to the consent and form requirement for a CEM. “Personal relationship”, is defined in the draft Regulations to require that the sender of a CEM and the receiver of a CEM have had an “in-person meeting”, and a “two-way communication” within the previous two years. On its face, this exception currently precludes meetings through, for example, online or social media forums.

Look for an update in this space when the Industry Canada Regulations are finalized. The most significant recommendation we can offer legitimate commercial entities doing business in Canada at this time is to not ignore Bill C-28, as doing so could subject you to severe penalties.

If you have any questions regarding compliance with anti-spam legislation, please do not hesitate to contact the Intellectual Property or Business and Corporate Services department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

Spare Time

October 15th, 2012

In my first week at DSF, several lawyers, including the managing partner, invited my articling-mate and I to write a blog entry every week or so to give you, the prospective articling student, a candid and honest perspective of what it’s like to be an articling student at DSF. We were supposed to write said blog entries in our spare time.

Well, fast forward eight weeks and I can tell you from firsthand experience that spare time is about as popular amongst articling students as walkmen are among Generation Z. Spare time be damned, I am committing to write one or two blog entries every week until the end of my articles.

I’ve got an idea of the things that I’d like to write about but I’m also open to your suggestions, so feel free to write me with any ideas that you may have and I’ll do my best to oblige.

I’m also going to try and leave you with a little something extra at the end of each entry. Perhaps a quote or a developing legal story, maybe a good lawyer joke from that week’s episode of Modern Family, which is one of my favourite shows, in any event, you get the gist.

In my first something extra, call it obiter if you like, I’d like to share this online article I first came across in my last year of law school (http://www.legalwritingpro.com/articles/john-roberts.php). It’s a few writing tips, modeled after Chief Justice of the US Supreme Court, John Roberts, considered by many legal pundits, irrespective of political belief, to be one of the best legal writers in the history of the US Supreme Court. Think about that for a moment. At any rate, use the writing tips at your leisure or feel free to share some of your own with us.

Domain Names, Trade-Marks and Cybersquatting

October 15th, 2012

Generally speaking, the internet is the media of choice for companies advertising their goods and services. Before venturing into the realm of social media, the first step for most companies is to set up a website. To allow the public to access your website, you must first register a domain name.

Ideally, your domain name will include the name of your brand (whether your “brand” is a product that you sell, a service that you offer or the name of your company) – e.g. www.thisismybrand.ca. In an earlier blog post (http://www.devrylaw.ca/intellectual-property/trade-mark-registration/) I discussed a common misconception that incorporating a business under a specific business name grants you trade-mark rights to that name. A similar misconception exists that registration of a domain name with an internet registration authority grants you special protection or even the right to use the domain name commercially in Canada. In fact, if there is a previously registered trade-mark that is confusingly similar to your domain name, the owner of that trade-mark may force you to give up your domain name. Even an un-registered trade-mark owner can force you to give up your domain name in certain circumstances.

Registration of a domain name does give you an exclusive right to use the domain (but not the brand name itself!) for a fixed period of time, but keep in mind that you never actually own a domain name. Domain names are generally issued on a first-to-apply basis, and an annual fee is required to maintain registration. Assignment of numeric addresses to domain names (e.g. 173.194.75.104 is assigned to www.google.com) is the responsibility of the Internet Corporation for Assigned Names and Numbers (ICANN). There are over 1,000 independent registrars which are accredited by ICANN to sell domain names around the world.

One of the reasons that it is recommended to file a trade-mark to protect your domain name, is to combat “cybersquatters”. Cybersquatting, according to the US federal law known as the Anticybersquatting Consumer Protection Act, is “registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trade-mark belonging to someone else”. While Canada doesn’t have any specific “anti-cybersquatting” legislation, the Canadian Internet Registration Authority (CIRA) requires anyone registering a domain name ending with “.ca” to meet certain “Canadian Presence” requirements – these include Canadian citizenship or residency, Canadian businesses, Aboriginal Peoples and Indian Bands, Canadian trade-mark holders (whether they are themselves Canadian or foreign), Her Majesty the Queen, and foreign businesses with a physical Canadian Presence.

While Canadian presence requirements will inevitably prevent some instance of cybersquatting, trade-mark registration is ultimately the most effective way of protecting your website’s domain name. Cybersquatting is prevalent in other countries as well, and at some point it becomes a business decision as to whether you want to spend the money required to prevent someone in another country from registering a similar brand name with a different top-level domain (TLD) (e.g. .ca, .com, .net). For example, if you are not doing business in India, and have no intention of doing business in India, and have a limited budget, it may not be necessary to register the domain name www.thisismybrand.in. On the other hand it is generally recommended that in addition to registering with the .ca TLD, you also register “.com”, “.net” and “.org” at the outset to prevent those pesky cybersquatters from taking your name.

It is highly recommended that you hire an experienced professional to first conduct a search for your proposed domain name in the trade-marks database as well as a general commercial search before you begin using that name commercially. If there are no similarly confusing names in use, then a trade-mark application should be filed to protect your domain name before you register for the domain name.

If you have any questions regarding trade-mark registration or domain name registration, please do not hesitate to contact a lawyer or trade-mark agent in the Intellectual Property department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

Back to (paying for) school: Child support and postsecondary education

September 11th, 2012

In Ontario, child support does not necessarily end when a child turns 18 years old. It can continue if the child remains dependant on her parents because she is pursuing full-time education or suffers from some infirmity that prevents her from becoming financially independent. However, child support can change a lot after a child turns 18 because the parents, and the court, have greater freedom to deviate from the child support tables.

The cost of postsecondary is a special expense under Section 7 of the Child Support Guidelines. Those costs, over and above that the child can reasonably contribute, are shared by parents in proportion to their incomes (if postsecondary education should be affordable for the family). The amount that a child is expected to contribute to her postsecondary education costs goes up with every year of that education as that child can earn more from summer employment or other sources. However, families that can easily afford those educational costs may be expected to pay the bulk of them the whole way through, while lower income families may be simply unable to contribute at all. All “children” are expected to take advantage of any scholarships, bursaries, or grants that are available to them.

Child support often works very differently for children who stay at home for their postsecondary education versus those who go away for school. For children who stay at home, base child support often continues under the tables while parents share required cost of tuition, books and other education related expenses. It does not have to be this way and parents can agree to other arrangements to meet the child’s financial needs.

A Child going away to school creates more opportunities, or issues, to meet that child’s financial needs. Part of the cost of going away to school, which the parents will share, includes the cost of housing, food, and similar expenses while away at school. However, those expenses are supposed to be covered by base child support. One option is for the parents to share all of the away from school education costs and to reduce the base child support while the child is away to reflect the fact that the recipient parent only has the cost of keeping a home for the child to come back to. If the child moves back for the summer, then the table child support resumes for those months. If the child does not show any interest in returning home, then the question arises to whether their base child support should continue at all. However, this is just one option. Sometimes, the support payor offers to pay the full costs of all the child’s expenses related to school away from home, without contribution from the other parent, in exchange for an end to the base child support payments. There may be other options that work well for the family.

Once a child turns 18, but is still dependant due to her education or health, parents have the freedom to restructure child support to whatever works best for them. The system of having base child support in accordance with the tables, and a sharing of special and extraordinary expenses, is no longer mandatory. Still, judges will expect that the child support arrangements will benefit the child as much as that system, even if the arrangements are very different.

Will kits – a small price now but an expensive disaster later…

September 11th, 2012

The basic objective of having a Will is to ensure that your wishes are clear regarding who is responsible for your estate and who benefits from your estate. So why gamble with Will kits that offer a one-size-fits-all form? Many may answer “it’s cheap”. This is a point that I cannot dispute. Indeed, the forms sold online are cheap and may even offer some peace of mind that your wishes, which are simple, are at least written down somewhere….and that’s better than nothing, right? WRONG!!!

The truth is that Will kits often create much bigger and more expensive problem(s). Improper signing is a recurring problem with Will kits. That is to say that there is only one witness or the witness is an improper one; sometimes the testator does not even sign his or her own Will!

Improper signing can bring into question the validity of a Will and open it up to challenge from a beneficiary or someone classified as a “dependent”, whether or not he is named in the Will. Unfortunately, these are common occurrences and may result in having to make an application to Court to prove the validity of the Will or, in certain other cases estate litigation – both scenarios will cost more than having a proper Will made with a lawyer.

There is no substitute for competent legal advice regarding the making and signing of your Will. A lawyer will listen to your wishes and offer options regarding how to structure your Will. Finally, a lawyer can help you see the bigger picture beyond your Will and offer broader estate planning insight regarding proper asset designation for further tax savings. This approach is in no way a one-size-fits-all solution nor should it be.

How much control do I have from the grave?

September 10th, 2012

This article was originally written by Albert Luk in The Blunt Bean Counter on May 15, 2012.
If nothing else, Charles Millar had a good sense of humor. The lawyer turned entrepreneur stipulated in his will that on the ten year anniversary of his death a portion of his estate was to be given: “to the mother who has since my death given birth in Toronto to the greatest number of children…” Given Millar was a wealthy man in life, and his estate well managed in death, the baby bonus was worth approximately $750,000: a small fortune to the depression era mothers hoping to win the prize. The ensuing local baby boom would be known as The Great Stork Derby.

Charles Millar’s estate represents one end of the will planning spectrum. A testator (the legal term for the will-maker) rather whimsically plays one final practical joke on the world. On the other end of the spectrum, testators attempt to control the lives of their beneficiaries from their graves, sometimes with the best of intentions but sometimes for more sinister purposes. It is not unusual for a frustrated father-in-law to write: “To my son, I give the sum of $50,000.00 if he divorces his wife” in a will.

To testators, the question often becomes, “How much control can I assert from the grave?” To beneficiaries, the question is often asked, “Do I really have to conform to those conditions in the will?”

The answer, as usual, is that it depends. Conceptually, it is possible to give a gift with conditions. The analysis is often whether the conditions themselves survive scrutiny or how long of a reach one truly has from the grave.

A general and non-exhaustive review of the Canadian law provides the following information:
• The more uncertain the condition of the gift, the more likely the condition will fail. An Albertan case found the condition that a home be gifted as long as the beneficiary lived in it and kept it in “good condition” was too uncertain. Specifically, who defines what “good condition” means? Martha Stewart or Frank the Tank? As the condition was too ambiguous, the condition failed and the home was gifted without conditions.
• A restraint on alienation (a legal term for restricting the sale of land) is not a valid condition. A mother once attempted to divide a plot of land equally to her sons on the condition one son sell his half at a specified time and specified price. As this condition restricted the ability of either son to sell, the condition failed. The exception to this rule is that property can be left to a beneficiary only for the duration of their life.
• Conditions contrary to public policy will be struck down. Violations of public policy would include conditions which, if carried out, would be considered to be in violation of the Charter of Rights and Freedoms or require the beneficiary to commit a hate crime or engage in criminal behaviour. For example, “I give to my son the sum of $50,000 only if he renounces his homosexual lifestyle,” or, “I give my daughter the sum of $100,000 if she burns down John Smith’s farmhouse,” would be conditions struck down as being contrary to public policy (not to mention the ethics behind such conditions).
• Conditions promoting marital or family breakdowns will also be struck down. Conditions which grant a beneficiary a sum of money conditional upon leaving or divorcing his spouse or requiring a child to live with one parent have been struck down as being contrary to public policy. However, conditions prohibiting a widow or widower from marrying again or prohibiting a marriage not in accordance with religious rules, tantamount to forcing someone to convert, are valid. It is not as clear whether partial restraints on marriage are valid conditions or not. Confused? These types of restrictions are confusing and qualified advice should be sought before contemplating any such condition.
• Conditions of residence should be reviewed carefully. “I give my son $75,000.00 to return home to Mother Russia” may or may not be upheld. Often these conditions are void for being too uncertain. However, if drafted carefully, they may hold up to scrutiny.
In summary, one’s reach from the grave can be quite long if the will is properly crafted. Courts have held in the past conditions which are positive (“I give my daughter $10,000 if she graduates high school and $25,000 if she earns a university degree”) are generally enforceable. Conditions which are progressively more restrictive are correspondingly more difficult to enforce if not struck down altogether. If struck down, the gift is usually granted without some or all of the conditions.

The key is that anyone looking to impose positive or negative conditions in their will, or any beneficiary subject to conditions, should seek qualified legal advice to determine their rights.

As for The Great Stork Derby, Millar’s estate survived challenges to the clause, withstanding even Supreme Court of Canada scrutiny. He was, after all, a lawyer. Four women each won $125,000 (over $1.5 million today) having nine (!) children in the ten year period. Two women—each having had ten children, but several out of wedlock (remember, this was the 1930’s)—sued the estate and settled for $12,500 each.

If you have any questions regarding wills and estates, please do not hesitate to contact a lawyer or trade-mark agent in the Wills and Estates department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

Disputes over IP ownership with independent contractors can be avoided

September 10th, 2012

A common source of dispute between companies and employees or companies and independent contractors is the determination of who owns the rights to intellectual property (“IP”) developed during the course of their working relationship. Whether you are an employer, an employee or an independent contractor, knowing and clarifying your rights from the onset of a working relationship is a good way to avoid costly disputes in the future.
In Canada, there is no presumption in favour of an employer when it comes to ownership of IP. To retain ownership over IP generated by their employees, Canadian employers must indicate with an explicit clause in the employment contract that IP developed while working at the company is the company’s property. In the absence of such a clause, the determination of IP ownership will depend on a variety of factors, such as: Was the IP created in the course of regular employment? Was the employee hired for the express purpose of creating the intellectual property in question? Did the conduct of the employee once the invention was created suggest ownership was held by the employer? Was the IP the product of a problem the employee was instructed to solve? Did the creation of the IP stem from confidential information or confidential work that the employee was privy to as a result of their employment?

The issue becomes more complex when the worker in question is not an employee, but an independent contractor. Determining whether someone is an independent contractor or an employee is a factor of how much control the employer has over the person. A worker who can refuse assignments, sets his or her own hours, uses his or her own equipment, and only gets paid for the actual work performed, is very likely to be a contractor. By contrast, someone who has no discretion to accept or reject assigned tasks, works on a fixed schedule, is provided equipment and supplies by the company, and is paid a regular salary, is very likely an employee. While a company may be entitled to more rights to materials created by employees, simply calling someone an employee doesn’t make it so. As the Supreme Court of Canada put it, “it is the true nature of the relationship” that matters as opposed to the label given to the relationship by the parties.

Disputes over IP ownership can be avoided by defining the working relationship with an independent contractor in a written agreement. A well-defined non-disclosure agreement, as well as a later agreement to grant intellectual property rights should be considered to solidify each party’s rights.

As a company matures, the value to the business of its IP may grow, and the need to put in place employee and contractor agreements that address IP ownership and treatment of confidential information becomes critical. Businesses that believe that they own the IP rights to inventions or other works created by employees and contractors by virtue of paying for their services could be in for a costly, business-disrupting surprise. Potential problems of this nature can be mitigated through the implementation of an effective intellectual asset management program, and by having appropriate legal input in the development and implementation of suitable employee and contractor agreements from the start.

If you have any questions regarding trade-mark registration, please do not hesitate to contact a lawyer or trade-mark agent in the Intellectual Property department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

Commercial Landlords Beware!

September 4th, 2012

Commercial Landlords Beware!

A recent decision of Mr. Justice Price drives home the significant risk a landlord takes by failing to give proper notice before trying to terminate a commercial lease.

In Dasham Carriers v. Gerlach, the tenant sought damages on the basis that the landlord had, among other things, improperly terminated the lease and locked out the tenant without having provided the notice required under s. 19(2) of the Commercial Tenancies Act.

The landlord, David Gerlach, maintained that the tenant’s lease had been correctly terminated because he had given notice of termination on March 3, 2011, and a second time on May 6, 2012, after the tenant had breached its lease obligations as well as health and safety regulations.

In reaching his decision, Mr. Justice Price pointed out that s. 19(2) of the Act is “clear and mandatory”. Under it, a landlord cannot enforce its right to re-enter leased premises (i.e., take them over, changing the locks, etc) or for forfeiture against a tenant in breach of any covenant or condition (except for failure to pay rent, which is treated differently) unless it gives the tenant written notice that:

(a) specifies the breach in question;

(b) requires the tenant to remedy the breach, if this is possible, even if it is fundamental to the lease agreement, including abandonment of the premises;

(d) gives the tenant a reasonable period to do what is set out in (b) or (c), above.

The judge found that neither the notices of termination nor other communication from the landlord met the requirements of s. 19(2). As a result, the landlord was not entitled to terminate the lease and was ordered to pay damages of just over $145,000 to the tenant.

As the foregoing illustrates, an improper attempt to terminate a commercial lease can turn out rather badly. Before taking any steps to do so, a landlord should weigh the matter carefully and consider getting informed legal advice. Otherwise, it risks finding itself in the same situation as Mr. Gerlach: with the aggravation and expense of litigation and a judgment against it.

Human Rights in the Corporate Setting

August 31st, 2012

A recent article by Siobahn McClelland (Click here) discussed an interesting Divisional Court decision, Ontario Human Rights Commission v Farris (Click here for the decision). The Divisional Court decision set aside a Human Rights Tribunal of Ontario decision and in doing so has made what one would hope will be an important step towards vindicating human rights in the corporate setting. Katherine Farris found herself terminated without cause from her employment with the corporation Saubuch Ontario Inc. in 2003. This occurred after she brought her concerns about her work environment to her managers, Harry McKeague and Michel Leonard, who were also the principals and shareholders of the corporation. Her concerns arose when she learned that there were rumours circulating at her workplace that she was having an affair with McKeague. The Tribunal found these rumours to be directly related to Farris’ gender. Further, it was found by the Tribunal that the employees at Farris’ workplace were calling her names that were based on her sex such as “bitch” and “psycho”.

When Farris spoke with McKeague and Leonard about this issue, they refused to take adequate steps to address it. As such, the Tribunal found that the corporation, Staubuch Ontario Inc., was liable for engaging in sexual discrimination and creating a poisoned work environment and awarded Farris $30,000.

While this outcome may seem positive, there was one important issue: By the time the decision was made, the corporation was no longer operating. Further, the Tribunal refused to award joint-and-several liability against McKeague and Leonard, even though they were found to be individually liable by the Tribunal. As such, it would have been nearly impossible for Farris to receive the compensation awarded to her.

Fortunately, the Divisional Court set aside the Tribunal’s decision and held McKeague and Leonard liable for compensation and sent the case back to the Tribunal to apportion liability. The Divisional Court emphasized that it was a finding of the Tribunal that McKeague and Leonard failed to recognize that there was a poisoned work environment. This in itself was a violation of s. 5(1) of the Human Rights Corde. Further, they chose to terminate Farris rather than deal with the poisoned environment.

This decision could be an important step in the right direction of protecting human rights, by possibly ensuring in the words of Barbara Hall, chief commissioner of the Ontario Human Rights Commission that, “corporate liability not act as a shield against individual liability.” Further, it opens up the possibility of ensuring that in the appropriate circumstances, those who have faced human rights violations are adequately compensated by the managers, principals and owners of corporations, especially when compensation would otherwise be nearly impossible.

Million Dollar Advocates Forum

August 30th, 2012

David Derfel, a partner in our Personal Injury Group, has recently been certified as a member of the Million Dollar Advocates Forum.

The Million Dollar Advocates Forum is recognized as one of the most prestigious groups of trial lawyers in North America. Forum membership acknowledges excellence in advocacy and is limited to lawyers who have won million and multimillion dollar verdicts, awards and settlements. The organization has approximately 4000 members located throughout the United States and Canada.
Congratulations to David!

Salesforce joins big leagues with buying spree

August 27th, 2012

Albert Luk, our business law lawyer, was quoted in The Globe and Mail recently. For a full story, please read: http://www.theglobeandmail.com/report-on-business/small-business/sb-money/valuation/salesforce-joins-big-leagues-with-buying-spree/article4466978/

Norwich orders: a tool to gather evidence and locate stolen assets

August 10th, 2012

Norwich orders: a powerful tool for gathering evidence and locating stolen assets
by Lawrence Hansen

An employer being defrauded by an employee is often faced with a difficult problem: how to gather information about the fraud and the location of stolen assets, including money, before the employee takes steps to destroy evidence and dissipate or hide misappropriated assets?

To address this problem, Ontario courts may compel an innocent third party to disclose otherwise confidential information about a client, including his or her assets as well as the history and use of bank accounts and credit facilities. It does so by way of a “Norwich order”, named after a British case, which permits the victim to obtain information from third parties for the purpose of proving a fraud, identifying the wrongdoer and recovering stolen property.

An application for a Norwich order can be brought without notice, may be heard in a closed courtroom and will often be joined with confidentiality orders, including one which seals the court file for a certain period, so as to avoid tipping off the wrongdoer.

The order is, however, an extraordinary one, requiring the following:

that the applicant for it show that the fraud claim is valid, bona fide and not frivolous or vexatious;

that the third party from whom information is being sought is “involved”, even innocently, as will be the case with a bank holding, without knowing, stolen funds on deposit;

that the third party is the only practicable source for the information being sought;

that the applicant indemnify the third party for the costs associated with compliance with the order; and

that after weighing the interests of and potential injury to the parties involved, the court is satisfied that it is in the interests of justice that the order be made.

Once granted, a Norwich order can be a powerful tool. With it, an employer can gather information that will often be critical to unraveling a fraud and determining where stolen property has gone – ideally well before the wrongdoer knows that he or she has been found out. The employer can then take steps to try to freeze assets and to preserve evidence, something which will be the subject of future blog entries.

Trade-mark registration – key component of a successful marketing plan

August 10th, 2012

Whether you are a new business just starting out, or an existing business looking to expand, developing and promoting your brand is a key component of a successful marketing plan. Registering your trade-marks in the initial stages of your marketing plan is a cost-effective way of developing long-term brand protection.

It is a common misconception that registering your business name, or incorporating your business (either provincially or federally) grants you all-encompassing rights in that name, including trade-mark rights. Unfortunately, this is not the case.

It is not mandatory to register your business name as a trade-mark. Using a name for a certain period of time establishes your ownership of that name through common law and does give you certain rights to the name. However, these rights are quite limited compared to the rights afforded to a registered trade-mark owner. For example, if your trade-mark is not registered, your rights are limited to the geographic area where the trade-mark has been used, and upholding the rights of an unregistered trade-mark in the courts can be an onerous process.

On the other hand, registration of your trade-mark grants you the exclusive right to use the trade-mark across Canada for 15 years (renewable every 15 years). Once your trade-mark is registered, an application by another party to register a confusingly similar mark will be refused. Registered trade-mark owners also have more options available to them to deal with infringers, including the right to sue for depreciation of goodwill, and the right to request a nationwide injunction from the Federal Court of Canada. Trade-mark registration is prima facie evidence of your ownership of the trade-mark, so if there ever is a dispute about your trade-mark, the burden of proof is now on the party challenging your mark. In most cases, registered trade-marks become incontestable after five years. If your long-term business plan includes foreign expansion, a Canadian trade-mark registration will generally make it easier for you to register your mark internationally.

Having a registered mark can often make your business more marketable. A registered trade-mark can be a marketable asset that you can more readily license or sell than an unregistered mark. A registered trade-mark can also be potentially used as security for a business loan.

Your marketing budget likely includes money for signage, packaging, and business cards. Building your company’s reputation is important, and registering your mark early on could avoid wasted time, energy, and money spent on legal disputes in the future.

Litigation strategy gone bad

July 30th, 2012

August 8, 2000, is not a date that the Brandiferri family is likely ever to forget. On that date, a fire started in their garage, destroying it and its contents as well as causing significant smoke damage to their home.

They reported the fire to their home insurer. It arranged for two contractors to prepare estimates. One contractor was chosen, and it got to work.

Things did not go well. As work proceeded, it became clear that the damage to the home, a lot of which was hidden, was much worse than had been anticipated. Further, the Brandiferris and the contractor had several disputes, there was a significant back and forth with the insurer about what was covered under the insurance policy and what was not, the insurer made a payment to the contractor in spite of the Brandiferris’ direction that this was not to be done, and they were not able to return to their home until 2004, several years after the fire.

They commenced an action against the insurer and the contractor for, among other things, deficiencies in the repair work. Matters then got worse: in response, the insurer instituted a claim against the Brandiferris for $600,000, something which raised the specter of financial ruin, and accused them of fraud in the proof of loss, the document which they had submitted to the insurer setting out the details of their claim.

Mr. Justice Lauwers presided over the trial and released his decision in June of this year. In effectively allowing the Brandiferris’ claim and ordering the insurer to pay $100,000 in punitive damages (which are for punishing reprehensible conduct), the court found that the insurer’s $600,000 claim against the Brandiferris, which was abandoned just before trial, was “opportunistic” and part of a “high-stakes litigation strategy designed to intimidate” them. This strategy, which even in the adversarial context of a law suit, breached the insurer’s obligations to the Brandiferris, cost the former an additional $100,000 in damages as well as a very public condemnation by the court.

The court’s decision merits careful reading for anyone involved in handling of property insurance claims, particularly if such claims end up in a court. It highlights the very special nature of the relationship, described by the courts as one of “utmost good faith”, between an insurance company and its policyholder, and how the implications of this relationship should and can have an impact on the conduct of a legal action and its outcome.

Appraisal: a cost-effective way to resolve property insurance claims

July 26th, 2012

It’s everyone’s worst nightmare. You wake up in the middle of the night to the piercing sound of the smoke detector and you, your spouse and children rush out of your home, only to see it go up in smoke as firefighters do their best to quell the fire that is consuming it. Or after a pleasant summer weekend away, you find your backdoor has been forced open, your home ransacked, and that your most valuable personal belongings have been either damaged or stolen. The loss is devastating.

You report a claim under your home insurance policy.

Most insurance claims are satisfactorily resolved, quickly and efficiently. Sometimes, however, the policyholder and the insurance company do not, for whatever reason, agree on what the loss is worth. A dispute over this can drag on for months, perhaps years, often leading to expensive litigation.

Is there some other option?

Luckily, home insurance policies in Ontario contain a clause which allows policyholders and insurers to elect for an appraisal under the Insurance Act, a process in which the insurer and policyholder each hire an appraiser, generally an insurance adjuster or someone expert in insurance claims, who, with an umpire (who will decide any matters that the two appraisers cannot agree on), will determine the value of the loss. The decision is binding and will very rarely be interfered with by the courts and really only in exceptional cases of fraud, collusion or bias.

Each party to the appraisal pays its own costs, they split the expense of the umpire, and, here is the best part, something that might otherwise take years, can generally be resolved in a matter of weeks.

Appraisal is particularly well suited for large losses (like a significant fire in your home), but because it may cost a few thousand dollars, may not be best for smaller claims. That said, it is certainly something worth exploring with a public insurance adjuster or with a lawyer.

Wrongfully Terminated? Why You Should Seek Independent Legal Advice

July 24th, 2012

By Lianne Sharvit – Summer Law Student

In a recent blog post titled “Fired at 63, court ups 7-month settlement to 12” (click here), Sheryl Smolkin made an important point very clear: While losing your job without cause can be extremely difficult and stressful, those feelings may be exacerbated if you do not seek independent legal advice to ensure you have been provided with a fair settlement in lieu of notice. That is what happened to Eric Rubin, a former Home Depot Canada employee who was fired after 20 years of working for the company.

In lieu of notice, Rubin accepted 28 weeks pay worth 38,977.81, as well as 28 weeks of life insurance, health insurance and dental benefits that would be terminated when he found a new job. He also received an extension of 8 weeks on his short and long term disability benefits. Rubin accepted this offer on the spot. He also signed a form releasing the company from further obligations, as he was told that the offer exceeded the legal requirements of 27 ¾ weeks of pay and that he had to sign the release within five days in order to secure it.

Realizing later that he had made a mistake, Rubin sued Home Depot, and was awarded one year’s pay by the Ontario Superior Court Justice Lederer (click here). Justice Lederer came to this decision by going through four criteria:

Firstly, Justice Lederer looked at whether the agreement was grossly unfair. The judge was of the opinion that an employee of 20 years that was nearing the end of his working life and was wrongfully dismissed should be entitled to more than 28 weeks notice.

Secondly, the judge looked at whether Rubin had independent legal advice when making the decision. The answer was clearly no, as a lawyer would have advised him that he in fact was entitled to at least 27 ¾ weeks of pay even if he did not sign the release, and that he could sue for more.

Thirdly, Justice Lederer looked at whether there was an imbalance of power. The judge held that there is an inherent power imbalance between an employer and employee, and that there is also an inherent power imbalance created when an employer is terminating the employee. Further, the employee did not mitigate the imbalance in any way, but rather likely exacerbated it by, for example, starting off the conversation by telling Rubin it was his last day.

Finally, Justice Lederer looked at whether Home Depot took advantage of Rubin in his vulnerable state. The judge held that the offer was presented to Rubin in a way which made it seem as if he had no choice but to accept it as he was essentially being given more than he was entitled to.

In the end, Justice Lederer held that the release Rubin had signed could not be enforced and that he was entitled to 1 year of salary and benefits. However, this all could have been avoided if Rubin had sought independent legal advice from the outset, demonstrating the importance of doing so. Fortunately, it also demonstrates that if you have settled for less than you deserve, there may still be legal recourse.

Incorporating is a two part process

July 13th, 2012

Go on-line. Fill in the appropriate forms. Pay your fee. You are incorporated right? Not exactly.

Incorporating a corporation is actually a two step process. The first step in the process is filing articles of incorporation with the appropriate agency, namely the Ministry of Government Services for a provincially incorporated corporation and Industry Canada for a federally incorporated corporation. The second step is to draft and pass by-laws and the organizational resolutions of the corporation.

By-laws set out the internal rules of the corporation for items such as how often a directors’ or shareholders’ meeting can be held, the process in which meetings are run and the roles and responsibilities of officers. Organizational resolutions are the resolutions, or corporate actions, which are required when a corporation is first incorporated to address issues such as appointing directors, issuing shares and setting a fiscal year end. A properly organized corporation will also contain registries setting out who the shareholders, officers and directors are.

Some entrepreneurs file articles of incorporation and believe they are incorporated. However, without properly constituted by-laws and resolutions, it will be difficult to determine who actually owns what shares and who the properly appointed directors are.

The absence of by-laws and resolutions becomes problematic in three common situations: (i) the shareholders begin to have a dispute as to ownership rights; (ii) Canada Revenue Agency, Workplace Place Safety & Insurance Board or some other government agency requests a review of the by-laws and resolutions for the purposes of an investigation or audit; or (iii) the owner is selling the shares in the corporation.

In the case of a government agency’s review, the absence of these documents may result in these governmental agencies making a finding which is not in the best interests of the business owners. Without the proper paperwork to back this up though, it is difficult to argue against the government. In the case of selling a business, poor incorporation paperwork may create doubt in the purchaser’s mind which sometimes can result in a lower purchase price.

For those who incorporated but never organized the incorporation properly, it is not too late. An “omnibus” or “rectifying” resolution can be authorized by the directors and shareholders of the corporation to correct the lack of paperwork. In some cases, the owners of the corporation pass omnibus or rectifying resolutions in advance of a sale, financing or just to clean up the books.

If you have any questions regarding incorporation, please do not hesitate to contact the Business and Corporate Services department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

Recently Terminated? Know Your Legal Obligations

July 13th, 2012

The duty of a terminated employee to mitigate their losses by finding alternate employment during the notice period has been hotly debated for some time. It comes as no surprise that employers, who are providing salary continuance in lieu of notice, insist that they be notified if the employee finds new employment during the notice period. The consequences of doing so, however, may mean that the employer will reduce the salary continuance payments or even cut them off completely, as the employee has mitigated their losses.

The debate is centered on how to best interpret contractual ambiguities. That is, many employment contracts set out the terms of the notice period the employee will be entitled to upon termination, but remains silent on the duty to mitigate. Thus, the question is whether the employer is entitled to still rely on the duty to mitigate to cut off salary continuance payments when the employee becomes re-employed.

Ontario case law has never given a clear answer on this issue. This changed last month with the release of the Ontario Court of Appeal’s decision in Bowes v Goss Power Products Ltd. The employee contract in this case was exactly alike to the one described above. It set out the employee’s entitlement upon termination without cause to a fixed period of notice or payment in lieu of notice. It remained silent on the duty to mitigate. The employee found a new job within two weeks of his termination at the same level of income. When Goss found out, they ceased to make payments claiming they were not responsible to pay any amounts Bowes had mitigated.

The Court of Appeal ruled in the employee’s favour. It concluded that the specified termination payment was either a contractual debt due or a liquidated damages amount. Either way, it does not constitute an award of damages at large under common law, like those that arise when someone breaches a contract, and so is not subject to the common law duty to mitigate damages.

This does not mean, however, that there will never be a duty to mitigate. The Court of Appeal also held that it is indisputable that the parties could have specifically agreed that mitigation did apply. Thus, it is the default position in the absence of the term to the contrary that mitigation does not apply. It remains open to the parties to agree to a term that leaves the employee subject to an obligation to attempt to mitigate his or her damages.

What this means is that employers must protect themselves by carefully drawing up detailed employment contracts and employees must take due care in reading these contracts and knowing their obligations before signing.

A Summer Law Student’s Experience

July 4th, 2012

Blog Post by Lianne Sharvit

In writing a blog entry about my experience so far at DSF as a summer law student, I felt it would be best to demonstrate my overall experience by describing my thoughts the week before I started my position, in order to contrast them with how I feel now.

The Week Before Starting:

As law students, we are prone to seeking perfection, and will often harp on the smallest, even most insignificant details in this pursuit. Those traits definitely came out in myself the week before I began my summer law student position at DSF. The arguably trivial questions running through my mind were: Is this suit traditional enough? Will I be comfortable in these shoes, and are they “work-appropriate”? Is this purse professional looking or just plain boring and unstylish? The question I was really hoping to answer favourably all along was: Will I make the right impression?

After Starting:

As early as my first day at DSF, my concerns about making the right impression quickly slipped away. The very informal, friendly, open-door and collegial environment at DSF enables students to feel welcomed and comfortable from the very start. Yet, we are also given a significant amount of responsibility from the outset. While certain tasks completely foreign to us may at first seem challenging, the help and encouragement we obtain from everyone at the firm makes the steep slope of our learning process that much easier to climb- and of course, having comfortable shoes doesn’t hurt either.

The Implications for Child Support…

June 28th, 2012

The Implications for Child Support of Social Networking, Anonymous Gamete Donation, the Immigration Process and Step Parenting

A previous blog (click here) discussed how a non-biological parent can be liable for child support, perhaps even owing as much child support as biological parent. The Alberta Court of Appeal’s decision is S.S. v. P.S. (available here), illustrates how that can happen and how a parent can end up paying full child support for non-biological children. It also held that when a parent has children using donated gametes, subsequent partners can be on the hook for the full table amount of child support because there is no biological parent with whom to share the child support obligation.

In the S.S. case, the wife, who lived in Mexico, had twins using sperm from an anonymous donor. She subsequently met the husband, who was from Alberta. After a short courtship, the husband and wife were married. The husband sponsored the wife and the children to immigrate to Canada. The couple subsequently had another child together. The husband referred to all three children as “his children” on social networking websites (presumably Facebook). The marriage broke down after only two years. The wife claimed child support for all three children. The husband agreed to pay support for only his biological child. The wife refused to allow the husband access to any of the children and returned to Mexico.

The Alberta Court of Appeal held that since the husband stood in the place of a parent to his “step children” because he:

(a) had referred to his “step children” as “my children” on the social networking sites,

(b) had sponsored their immigration to Canada, which included an undertaking to be financially responsible for them while they are in Canada, and

Further, as there was no known biological parent for the step children, the Court of Appeal said there was no basis on which it could reduce the husband’s child support below the full table amount, even though the marriage lasted only two years and the husband had been involved with the step children for less than half of their young lives.

The S.S. case is a cautionary tale regarding how non-biological parents can very quickly, and without intending to do so, make themselves liable for same amount of amount of child support as a biological parent.

What marriage contracts or cohabitation agreements cannot do

June 26th, 2012

A previous blog discussed the many benefits to having a marriage contract or cohabitation agreement. That blog described how couples can have certainty in their lives, if they are married through a marriage contract, or if they are living together through a cohabitation agreement. There are many ways that they can set up their lives to be better than they would be if the couples stayed under the provisions of the Family Law Act, or went to court to resolve the matters between them.

However, the law prohibits marriage contracts from doing eight important things:

1. Marriage contracts cannot set parenting terms (address issues regarding custody or access). Judges always have the right to make the custody or access order that they feel is in the “best interest of a child”, regardless of an agreement between the parties. While the Family Law Act specifically allows marriage contracts and cohabitation agreements to address the educational and moral training of children, the Act also says that judges can override the contract if doing so is in “best interest of the child”.

2. A marriage contract or cohabitation agreement cannot restrict either married spouse’s right to be in a possession of a matrimonial home. On separation, married spouses have an equal right to stay in any matrimonial home, and there can be more than one. Marriage contracts cannot require one spouse to leave a matrimonial home. They also cannot authorize one spouse to sell, mortgage or otherwise encumber or dispose of a matrimonial home before the spouses are divorced or they have a separation agreement or court order addressing the issue. Only married spouses can have matrimonial homes, so this restriction does not apply to cohabitation agreements unless the parties marry with the agreement still in effect. (Note: A cohabitation agreement could create rights to a property that are same as matrimonial home rights for parties who are married.)

3. A marriage contract cannot opt parties out of the Child Support Guidelines unless the provisions benefit the child as much or more than the Child Support Guidelines. In any event, the court always has the right to make an order that is in accordance with the Child Support Guidelines if the judge does not like the terms of the agreement.

4. A marriage contract cannot require that the parties go to mediation or arbitration instead of court after separation. The Family Law Act only allows parties to agree to mediation or arbitration after the dispute between them has already arisen. The parties can say that they would like to maintain a good relationship and use a more amicable process than court after they separate, but those terms in the marriage contract are not binding on the parties.

5. Marriage contracts are not recognized under the Income Tax Act with regard to the treatment of support. Periodic spousal support paid during or after the marriage pursuant to the terms of a marriage contract or cohabitation agreement will not be deductible to the payer and taxable in the hands of the recipient. Unless the parties sign a separation agreement, or obtain a court order, confirming those terms. People who are living together cannot agree that one will pay support to the other to shift the tax burdens to the person who pays tax at the lower rate.

6. Marriage contracts cannot waive a spouse’s entitlement to receive disclosure before signing the contract or signing a separation agreement. The Family Law Act gives judges the power to set aside any marriage contract, cohabitation agreement, or separation agreement that was negotiated without the parties receiving full financial disclosure.

7. A marriage contract or a cohabitation agreement also cannot waive a spouse’s right to obtain independent legal advice on either the marriage contract, cohabitation agreement, or a subsequent separation agreement. Again, judges always have the power to set aside an agreement that one or both spouses did not understand. The best evidence that the spouses understood an agreement is for them to have had independent legal advice.

8. A marriage contract or a cohabitation agreement is also not enforceable in relation to circumstances that the parties did not contemplate at the time that they signed it. If the couple wants their marriage contract or cohabitation agreement to be enforceable no matter what circumstances happen in the future, it is important that the agreement state that they have contemplated all possible future happenings and have still decided that, no matter what happens, they wish to be bound by the marriage contract or a cohabitation agreement. (Ensuring that a marriage contract meets this requirement is one of the trickier aspects of marriage contracts and it is another reason why lawyers need to be involved in the creation of a marriage contract.)

The above are some of the restrictions on the creation of marriage contracts or cohabitation agreements. As long as couples stay away from the above restrictions, they will likely have an agreement that the court will enforce that will give them some certainty with regard to their affairs after marriage breakdown.

Family Matters Deserve Lawyer’s Attention

June 25th, 2012

A little good advice can make life a lot easier. Family law matters can be extremely complicated. A little mistake can make a big difference in the end. Many people learn their actions, when getting married or separating, had unintended consequences. At times of high emotion, it is easy to make mistakes that cost you the cottage, the family business or the home you have loved for years. Making the wrong move can also, unintentionally, turn a friendly disagreement into an all out battle that has kids in the cross fire. Fortunately, all of that can be avoided with the assistance of a family law team devoted to guiding a client every step of the way.

Good Family Lawyers can anticipate potential problems and prevent them from the very beginning – sometimes even before the marriage ceremony. If things start to go downhill, a good Family Lawyer can keep you on track for the type of separation or divorce that you want, while still getting the best possible results. They may even be able to fix serious mistakes. Still, it is always better to start off right and avoid doing something that costs you too much. It is important to have a lawyer who spends time to listen to what you want and has the time, experience and skill to get it for you.

You can tell right from the first meeting whether a law firm can give you the attention and assistance you need. Having two lawyers meet with you doubles the knowledge, experience and perspective that the firm brings to your situation. It also makes sure that vacation, illness or other matters do not prevent you from talking to a lawyer who knows your life. A full service firm ensures you get the right results when your Family Law matter touches on other areas of law, be they corporate or criminal or in between. Excellent clerks can do work at a lower cost. The lawyers you meet should explain all the many options for resolving your matter in the way you want. You should leave the meeting feeling you learned a lot and the lawyers know how to address your concerns.

Devry Smith Frank LLP has family litigators, mediators, arbitrators and collaborative lawyers who deal with every type of case. Visit us at www.devrylaw.ca. Book a consult or buy John Schuman’s book on Family Law at www.amazon.com.

Marriage contracts: What they can do for you

June 20th, 2012

More and more people are going to see Family Law lawyers before they get married to arrange for a marriage contract (called a “pre-nuptial agreement” in the United States or a “cohabitation agreement” if the parties are living together but not getting married). This trend seems to reflect couples desire to avoid the uncertainty of what may happen in Family Court and to avoid, from the outset, the possibility of a long, bitter fight. Since marriage contracts can also cover how the couple will organize their affairs during the marriage, some couples view them as an important part of considering what marriage means and how they will live their lives together. In addition, as people are getting married later in life, they are entering their marriage with more assets, and possibly business interests, that they do not want to have affected by the marriage. Since marriage contracts can be signed at any time, not just before a marriage, some couples use them as an alternative to separation as they can address the issues that are causing friction between the spouses.

Negotiating a marriage contract may not be romantic, but it should not be difficult. If the couple cannot work out the terms in a friendly manner, then what does that say about their married life together? If each fiancée has a fundamentally different view of what the marriage means, isn’t that something that it is best to discover before the wedding?

Marriage contracts can cover a lot of issues. There are some things they can’t do, but that will be the subject of another blog. Some of things that couples can do with the marriage contract are the following:

Set out which spouse will own what and how property will be divided if the parties separate. There are very few restrictions on this and the spouses can divide their property in a manner that is very different from what would usually be the case under the Family Law Act.
The parties can set exactly what amount of spousal support would be paid between them when they separate or specify that no spousal support will be paid.
Set out which parent will direct the educational and moral training of the children during the marriage. However, if the parties disagree about this point after separation, the court always has the right to decide what is in the best interests of the children.
Require the spouses to honour the terms of a shareholders agreement for a business, requiring a spouse to do things like resign from a family business on separation or not enforce judgements against a family business.
Requires spouses to designate a certain property, or kind of property, as the “matrimonial home” so that other properties such as a cottage are not tied up as a matrimonial home regardless of how the family uses them.
Specify who pays for what expenses during the marriage and set out what will happen if one spouse does not honour that obligation.
Prevent either spouse from attacking the others pension to ensure that the pension remains intact even if the marriage does not.

The above are just some of the many advantages to negotiating a marriage contract. They show how a marriage contract can offer a level of certainty about what will happen if the marriage breaks down. That certainty simply does not exist without a marriage contract.

How private is my Facebook page?

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.

The Practice of Law

April 13th, 2012

It seems like only yesterday I was attending my first motion, settlement conference and spending countless hours deciphering paper jams, but here I am eight months down and just two to go. With the anticipation of my Bar Call in June fast approaching perhaps the one thing I have learned most during my articles is the true meaning of the term ‘Practicing Law’.

While I have had the opportunity to work toward improving certain aspects of my practice by attending to similar matters over and over, I have quickly realized that even the most trivial of matters can keep you on your toes. For example, when you think you had perfected the best way of advocating for a particular client within the realm of a small claims settlement conference, you soon meet your match, whether it be an unreasonable unrepresented, a brilliant opposing counsel or a hardened judge. One again you are back to practicing new techniques and learning new ways of advocating. It all comes back to practice, and if I have learned one thing during my articles it’s that the practice part of law never ends.

Buyer Beware

April 13th, 2012

Did you know that under Ontario’s Employment Standards Act, a purchaser of a business will be deemed to be a successor employer, at least for the purpose of calculating reasonable notice of termination, if it hires an employee who worked for the company being sold within 13 weeks of the earlier of the employee’s last day of employment with the previous employer and the date of the sale – even if the employer was terminated with notice or pay in lieu of notice before the business was sold! Moreover, the new business would not get credit for any termination payments received by the employer from the previous business. That means, the employer is entitled to notice or pay in lieu of notice from the new business having regard to the day he or she started employment with the original business.

Sounds about right

April 2nd, 2012

This week the Canadian Trade-Marks Office announced that effective immediately it will begin to accept applications for sound-based trade-marks.

This decision stems from a recent Federal Court decision overturning the Canadian Intellectual Property Office (CIPO)’s refusal to register MGM’s famous “lion’s roar” sound as a trade-mark.

Traditionally, it has been a requirement that trade-marks be easily represented visually, either as a word, phrase or logo. While the Trade-Marks Office will still require an application for a sound mark to include “a drawing that graphically represents the sound” (e.g. as a waveform depiction of the sound), this decision may open the door for CIPO to allow other non-traditional trade-marks in the future, such as moving images, holograms, scents, tastes and textures.

For the time being, new applications for sound marks may only be submitted by way of a paper application, and must include a recording of the sound mark in MP3 or WAVE format, limited to 5 megabytes in size, and recorded on a CD or a DVD.

For more information on registering traditional or non-traditional trade-marks, contact Cory Schneider.

Employees Beware: Reasonable Notice is a Double-edged Sword

March 23rd, 2012

A recent Ontario Court of Appeal decision has endorsed the position of the Ontario Superior Court of Justice, that employees may owe their employee a significant amount of notice when planning to leave their employment. In the case of GasTOPS Ltd. v. Forsyth, four former employees of a company left their employment to start their own, competing business. Each of the four former employees provided the employer with two weeks notice, often considered to be a reasonable amount of time to offer when resigning from a job. However, given the importance of the roles that these employees played in the company they left, the trial judge held that they were integral to the direction and guidance of the company.

In upholding the trial judge’s decision, the Court of Appeal has reinforced the position that employees who are aware of their importance to the operations of their employer, and violate their responsibility to the employer by failing to provide adequate notice of resignation, may be financially liable to the resulting damage caused to their employer. In the GasTOPS case, the former employees, and their newly formed company, were found liable for damages to their former employer in the amount of over 12 million dollars, calculated as the amount of profits earned by the former employees through their newly formed company over a 10 year period. As well, an additional 3 million dollars in pre-judgment interest, and over 4 million dollars in legal costs, were awarded to the employer.

With regards to notice period, the trial judge noted the following:

“Failure of an employee to provide adequate notice will entitle the employer to an award of damages. Generally, reasonable notice is meant to give the employer time to hire and train a replacement. In determining the time required to hire and train a new employee, one must look at the nature of the employee’s position and the area of work that the employer was competing in.”

The Court of Appeal upheld the trial judge’s finding that the former employees had owed approximately 10 months notice to their former employer, given their roles and time spent with the company.

Until next year!

March 8th, 2012

Rose Reisman with the crew from Devry Smith Frank LLP, February 17, 2012

See article in Snap North Toronto

Heart and Stroke Foundation Cheque

March 8th, 2012

Skate-A-Thon Sponsors

March 8th, 2012

With the support of the these organizations and the local community we were able to raise $5000 towards research for the prevention of heart disease and the promotion of healthy living in Canada.

Hellenic Canadian Lawyer’s Association Reception

March 5th, 2012

Nick Dimitropoulos attended The HCLA’s reception in honour of Justice Karakatsanis’ appointment to the Supreme Court of Canada. A number of other guests representing numerous legal organizations, the judiciary and the Greek Community joined the HCLA in this wonderful celebration. The event took place on Friday, February 24, 2012 at the Gardiner Museum.

Getting Your Ducks in a Row Early

February 22nd, 2012

As I’ve preached several times before, the practice of law takes a great deal of hard work and dedication, and certainly isn’t a career chosen with minimal deliberation.

Always happy to be helping students who display the motivation to succeed, I was pleased to accept an invitation to speak on behalf of Devry Smith Frank LLP as a panel member with the Pre-Law Society at York University taking place February 29th, 2012.

Court Overturns Discrimination Finding of Human Rights Tribunal

February 16th, 2012

Court Overturns Discrimination Finding of Human Rights Tribunal in Pieters v. Peel Law Association

The Human Rights Tribunal found that two black lawyers were discriminated against after they were asked for identification in a courthouse library. However, this decision was recently overturned by the Divisional Court, which concluded that “A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination.” Will the case be appealed to the Court of Appeal?

Click here to read the full article in the National Post. Click here to view the Tribunal’s decision (which has been overturned).

Court Strikes Down Mandatory Minimum Sentence For Gun Possession

February 15th, 2012

The three-year mandatory minimum sentence for gun possession has been declared unconstitutional. Check out the full article in the National Post.

Perils of taking on a second job

February 8th, 2012

While many people are forced to work multiple jobs in this tough economy, employees should ensure that they properly consult with their primary employer before taking on any other unrelated work. The recent case of a bank employee, Marilyn Patterson, who worked as a real estate agent part time, serves as a warning for employees contemplating a similar move.

Ms. Patterson had been employed with a bank for 12 years, when she received a real estate license and began working part time with a local realty office. The bank became aware of this arrangement, and requested that Ms. Patterson discontinue her real estate activity or look for a new opportunity within the bank (one where no conflict with her current duties and her real estate activities would exist). After she refused these requests, Ms. Patterson was terminated without notice. Though no other performance issues were claimed by the bank, the judge in Ms. Patterson’s wrongful dismissal suit was forced to dismiss the action. The bank had clearly outlined guidelines regarding secondary employment and conflicts of interest, to which Ms. Patterson had agreed to in her employment contract.

The bottom line is that, while not all secondary employment will be viewed as posing a conflict with one’s primary employment, employees considering such an arrangement should spend the time reviewing their company’s policy regarding conflicts of interest and exclusivity of employment. Employers are entitled to set reasonable standards, such as prohibiting bank employees (where access to mortgage authorization may exist) from working as realtors. In light of Ms. Patterson’s case, conflicts that are obvious are likely to be upheld by the courts.

CATASTROPHIC IMPAIRMENT FOR ALL!

February 2nd, 2012

The Ontario Court of Appeal’s recent decision in Kusnierz v. Economical Mutual Insurance Company confirmed that psychological impairments should be combined with physical impairments to determine whether a car accident victim has suffered a catastrophic impairment.
This is an important decision for all victims of motor vehicle accidents in Ontario, who, according to current motor vehicle legislation generally fall into two categories: those who receive minor injuries, and those who are catastrophically impaired. Accident victims who meet the definition of catastrophic impairment are entitled to claim greater accident benefits, and for a longer period of time.

Writing for a unanimous Court of Appeal, Justice MacPherson, ruled that the proper interpretation of section 2(1.1.)(f) of the Statutory Accident Benefits Schedule (the “SABS”) is consistent with allowing the combination of both psychological and physical impairment scores to determine an injured person’s WPI score. Referencing the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which is explicitly designated as the frame of reference for the relevant sections of the SABS, Justice MacPherson writes:

In my view the trial judge erred by concluding that combining physical and psychiatric impairments “would contradict the express purpose of the Guides, which is to provide a system for evaluating impairments that is objective and standardized”. With respect, this ignores the Guides’ parallel aim of assessing the total effect of a person’s impairments on his or her everyday activities. An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment. To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.

The Court determined that combining scores produces results that are consistent with the purposes of the SABS and that allowing combination promotes fairness and the objectives of the statutory scheme.

This is a positive outcome for all victims of motor vehicle accidents in Ontario as it means that people with severe psychological and physical impairments may get easier access to the medical benefits recommended by their doctors and hasten their recovery and improve their quality of life.

Exchanging Financial Disclosure Is Necessary for ANY Domestic Contract

January 23rd, 2012

There are many types of domestic contracts – marriage contracts, cohabitation agreements and separation agreements are the most common types. For all types of domestic contracts, the basic requirements of contract law are necessary: the agreement must be in writing, signed by both parties and witnessed.

Even when these basic contractual requirements are met, however, your domestic contract may not be enforceable in a court of law unless these additional rules have been followed:

1. Both parties fully understand the agreement and the consequences of signing the agreement. In order to properly understand the agreement, both parties must have received independent legal advice regarding the terms of the contract;

2. Full, complete and accurate financial disclosure has been exchanged between the parties; and,

3. The agreement itself or the circumstances arising from the agreement must not be unconscionable (meaning, the agreement is so unfair, it would “shock the conscience of the court”).

Any good family lawyer will tell you from the beginning that collecting and producing your financial disclosure to your spouse is not so much an option as it is a necessity. There is, frankly, little point in spending the time and money to negotiate, draft and execute a domestic contract that will hold little weight, if any, if one party in the future decides to challenge a term or terms of the agreement. It makes more sense, from an economic, as well as from an emotional standpoint, to spend the extra time and money to arrive at an air-tight agreement that you can lean on as you begin a fresh chapter in your life.

Can I afford to divorce in tough economic times?

January 19th, 2012

Tough economic circumstances can make continuing a marriage intolerable. However, some spouses feel that they cannot leave a terrible marriage because it will just cost too much to get divorced. There is no question that waging a nasty war in divorce court will be very expensive. In addition, family court judges must apply the law when deciding cases, which means they cannot devise creative solutions to difficult family economic situations. However, that does not mean separation is not an option for unhappy spouses. It just means that court is not the right choice for resolving family law issues.

Family mediation and collaborative practice are two options for separating couples that have large advantages in tough economic times. Both can allow separated couples to resolve the matters between them for a fraction of the cost of fighting things out in court. An even bigger advantage of family mediation and collaborative practice is that it allows for the parties, with the help of their lawyers, to be much more creative in resolving financial matters. The separating spouses can create a resolution that is fair to both spouses and also reflects the reality of their difficult financial circumstances. Any financial settlement through mediation or collaborative practice must benefit minor children as much or more than a strict application of the Child Support Guidelines. However, aside from that requirement, there are a few other limitations on what terms are possible in a family law settlement. The parties do not have to strictly apply Family Law, in the way that a judge must, in collaborative practice or mediation. However, it is still useful each of them to have a lawyer so that they know that the settlements they are considering is fair and benefits them as much as, although differently than, what a judge would order. (Each party must have independent legal advice for any settlement to be enforced by the court.)

Mediation and collaborative practice allow the parties to tailor a resolution that meets both of their needs. That can include addressing tough financial circumstances. The settlement can put off having some money change hands until times are better. Those settlements can also involve having debts or assets change hands in a way that the court cannot order, even though it makes more financial sense for the parties. There can be many other creative ways to address each spouse’s needs depending on their particular circumstances.

Avoiding the cost of a nasty court battle leaves more money available for the children, to say nothing of avoiding the emotional cost of a war between parents. However, both parties must choose to use either collaborative practice or mediation. One spouse cannot require the other spouse to use one of those options. If one spouse is going to be uncooperative, then court may be the only possibility. However, if both spouses are going to be sensible, then they can get divorced, including resolving all of the issues between them, for a minimum cost and create a new financial reality for the family that makes the most money possible available for everyone.

Mitigation is critical in unlawful dismissal disputes

January 18th, 2012

When a terminated employee decides to sue their former employer for damages, an important factor (which is often neglected) on the part of the suing employee is their responsibility to mitigate their losses resulting from the termination. Without proper mitigation, or the necessary documentation of mitigation efforts, the former employee may be entitled to a significantly reduced damage award.

Mitigation entails that the employee has made reasonable efforts to find new employment. Such efforts can be demonstrated by documenting all online job searches, preparing an updated resume, and utilizing the services of an employment agency or search firm. It is important to note that the mitigating claimant does not need to necessarily accept any offer of employment that comes their way, but merely must prove that reasonable attempts were made.

The case of Leo Magnan, a nearly 30 year employee of Brandt Tractor in Alberta, provides a cautionary tale regarding the failure to mitigate damages resulting from an unlawful termination. Mr. Magnan was forced to retire, based on an unwritten company policy that demanded employees to step aside by age 65. Upon reaching 65 years of age, Mr. Magnan expressed his desire to remain employed, but the company refused, relying on the company policy that Mr. Magnan had consented to. Though Brandt Tractor eventually offered Mr. Magnan his job back, he refused the offer, and successfully sued the company based on constructive dismissal. Unfortunately, due to Mr. Magnan’s earlier indications that he would have accepted his forced retirement, and his failure to look for new work upon termination, the court only awarded him 3 months of income as a damage award, where he would have been entitled to a significantly larger notice period award, given his many years of service.

To summarize, despite the legitimacy of your claim for unlawful dismissal, if you cannot prove a financial loss by making reasonable efforts to find new employment, your damage award may be significantly reduced.

Our 1st Annual Skate-A-Thon

January 12th, 2012

DEVRY SMITH FRANK LLP is proud to present our 1st Annual Skate-A-Thon in Support of the Heart and Stroke Foundation.

This event will take place at the outdoor ice-rink within the Shops of Don Mills located at 1090 Don Mills Road on Friday February 17, 2012 between 11:00 am and 1:00 pm.

For more information please contact Igor Poroger by email igor.poroger@devrylaw.ca or by phone 416.446.5860.

Here is a link to our event on the Heart and Stroke Foundation website.

If you would like to make a donation please click here.

New Changes to the Federal Child Support Guidelines

January 6th, 2012

Effective December 31, 2011, the Federal Child Support Guideline Tables have changed. In many cases, the child support payments will increase. In others, the payments will decrease. How this affects you and the child support you pay or receive still depends on the province in which the support payor lives, the number of children, and the payor’s income.

The fact that the child support Tables have changed will have a corresponding effect on spousal support under the Spousal Support Advisory Guidelines when using the “With Child Support” and “Custodial Payor” calculations.

You may visit http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp to run a quick calculation to determine how the new child support Tables will affect the child support that is currently being paid. However, in many cases, including those that involve a self-employed payor, it may be beneficial to discuss the payor’s income on the amount of child support payable. The self-employed payor’s Line 150 income, as displayed on his or her income tax return, may not be appropriate to determine the amount of child support payable based on the Tables. One of our family lawyers will be able to assist you with this issue and with the Spousal Support Advisory Guidelines calculations.

Spousal Support Entitlement

December 14th, 2011

In this video blog Julie Tyas discusses Spousal Support Entitlement.

http://www.youtube.com/watch?v=brJzgTth5hE

Slip and Falls: Winter’s around the corner, so watch your step!

December 13th, 2011

Slip: A sliding motion where the foot (shoe) loses traction with the floor/ground surface resulting in a loss of balance.

Trip: Involves a loss of balance when the natural movement of the foot is interfered with momentarily.

Fall: A drop in height of the human body.

Slips and falls are a very common cause of injury, especially during our wonderful Canadian winters. While it is our recommendation that you should always maintain a sense of caution while walking around, you should also be aware of your rights, should you find yourself off your feet!

A 2005 slip and fall case, Cooney v. Kingston (City), demonstrates that cities can be found to share the burden in recompensing slip and fall injury victims. The plaintiff in this case was a newspaper delivery man, who was familiar with the location in which the accident occurred. Though the plaintiff was wearing winter-appropriate footwear, he slipped on a piece of ice that had formed on a city sidewalk. The resulting injury to the plaintiff’s ankle, tibia and fibula had him in a cast for over six weeks, and forced to use a cane for two months.

The plaintiff took the City of Kingston to court, claiming the City was negligent in its sidewalk icing operations. The Court determined that the City was grossly negligent in failing to maintain a safe sidewalk, but also found that the plaintiff was partly responsible, for failing to keep a proper lookout. At the end of the day, both the City and the plaintiff were found to be equally negligent, and so the plaintiff’s damages were cut in half. The damage award was $40,000, so the plaintiff received $20,000 in total.

If you are injured as a result of a slip and fall, and you believe that part, if not all, of the blame lies with the person or organization responsible for the area you fell in, contact one of the Personal Injury lawyers at Devry Smith Frank LLP for a free assessment of your case.

How Quickly the Tables Have Turned

December 13th, 2011

It’s that time of year again, the Christmas lights are out and summer student interviews are upon us. Feels like just yesterday I was bombarding Students-at-Law about their firm experiences in order to gain that upper hand. I guess it’s now my obligation to return the favour. Ask away students.

Is there a reason why I should stay in our home?

December 9th, 2011

Many people have heard that if they separate from their spouse they should try to stay in the matrimonial home. There are a lot of rumours as to why that is important. In reality, there are only two reasons for staying in the matrimonial home after separation. If those two reasons do not apply to your circumstances, there is no reason to stay. The two reasons for staying in the matrimonial home are 1) To remain a custodial parent of any children; and 2) For financial reasons if both parties are entitled to stay in the home.

The most important reason why a spouse should stay in the matrimonial home after separation relates to the children. Ontario Law says that if one spouse walks out leaving the children behind with the other spouse, the spouse with the children has de facto custody of the children. The “staying spouse” has the right to make all of the decisions of a custodial parent. If a spouse wants to be remain actively involved in making decisions for the children, that spouse must either stay in the matrimonial home, get the other spouse to agree in writing to joint custody, or get a court order that permits the leaving spouse to continue to make decisions for the children. The idea behind is that the parent who is caring for the children on a daily basis is probably the parent who is best suited to make the big decisions for the children. Once there is a regime that is firmly in place allowing one parent to “have custody” and make all the decisions, that situation can be very hard to change in court. Staying in the house also has the advantage of not requiring the parties to agree on parenting or access schedule. If both parents are still living to together in the same house with the children then it is easy to maintain an equal sharing of the children’s time. That equal sharing can be continued into a parenting plan when the parties do finally move into separate residences.

The second reason for staying in a matrimonial home is that both parties are legally entitled to stay in that home until there is an agreement or court order to the contrary. Neither married spouse could kick the other out of the matrimonial home – only the court can do that. A separated married spouse may find that it is too expensive to rent or buy a new home by him or herself. It can be far more cost effective for the separated spouses to continue to share the cost associated with living in the matrimonial home and both spouses continuing to live there.
Ontario Law does not give common-law spouses the right to stay in a family home after separation. The person who owns the home, or whose name is on the lease, gets to say who lives there, subject to landlord – tenant legislation if it applies.
There are no other reasons for staying in the matrimonial home with a spouse after separation. Leaving the matrimonial home does not mean that the leaving party has their name taken off title if the parties were joint tenants, or that the leaving spouse is giving up the right to ask to share the value of the equity in that home. Who leaves does not affect the amount or duration of spousal support. However, courts may not view that there is a need for support payments while the parties are living together in the same house and one or both of them are meeting their spouse and children’s needs. It is almost always cheaper to maintain one household instead of two, so that can be a practical reason for remaining in the home.

Another practical reason for remaining in the home with the kids is that the staying parent has control over where the children go and when. The staying parent can stand in the way of the leaving parent seeing the children. However, that is not behavioural that the law condones, in exceptional circumstances, nor that a judge will tolerate. The leaving parent will only be cut off from the children until the parties can get into court, or the staying parent follows the advice of a family lawyer.

Maintaining involvement with the children and needing a place to live are the reasons for staying in the home after separation. If neither of these is a consideration, then there is no reason to stay in the home.

Can I lose my family home or cottage to my spouse?

December 9th, 2011

When a family home or cottage is been in a family for generations, the spouse who is inheriting the property may be worried that the property will be lost to a spouse in divorce. If the spouses used that traditional family home together as a matrimonial home, a court can order that the “non-inheriting spouse” can stay in that home until the parties divorce, which may take several years. The court cannot order that the “non-inheriting spouse” gets legal title to the property. However, the family property regime in Ontario can force a spouse who has had a home in the family for generations to transfer it to the other spouse out of financial necessity.

The difficulty surrounding traditional family homes is mostly caused by the requirements in Ontario’s Family Law Act that any matrimonial home be included at full value in a spouse’s net family property. A matrimonial home can be any home that the spouses used or occupied together during the marriage. There can be more than one matrimonial home. Both a home and a cottage can be a matrimonial home at the same time. If one spouse inherits the traditional family home prior to separation, the value of that property on the date of separation is shared between the spouses. If the other spouse has significant assets, the value of which must also be shared, then this may not have much impact on the traditional family home. However, if the “non-inheriting spouse” does not have many assets, then the equalization of the party’s net family properties can require in the inheriting spouse making a very large payment to the other spouse. That payment may be half the value of the inherited property. Inheriting spouses may have no option but to either sell the traditional family home or transfer it to the other spouse to satisfy this obligation.

The breakdown of a marriage after only a short time can result in circumstances that are quite unfair. If a spouse inherits the traditional family home prior to the marriage, the whole value of that property may be shared on marriage breakdown. A spouse does not get credit for bringing a property into the marriage if that property was a matrimonial home on separation. Even after a very short marriage, the entire value of that matrimonial home must be shared, which may result in a situation where the inheriting spouse has to either sell the property or transfer it to the other spouse.

There are two ways to prevent the above circumstances that can result in the loss of a traditional family home. The first is for the spouse not to inherit a property prior to a separation. If a spouse does not own a property, it is not included in that spouse’s net family property and so the value is not shared. The second, and perhaps more practical option, is for the parties to sign a marriage contract that excludes the traditional family home from the calculation of net family property. A marriage contract cannot require that the non-inheriting spouse leave the traditional family home on marriage breakdown or prevent a court from allowing the non-inheriting spouse to stay in the property until the divorce is finalized. However, the marriage contract can ensure that at the end of the whole process, a traditional family home can still be owned by a member of the family.

Access/parenting schedule for infants and toddlers?

December 9th, 2011

Separated parents frequently feel that they do not get to spend enough time with the children. Those feelings can be amplified when the children are very young. Many parents want to make sure that their children bond with them at a young age. A parent who wants to be actively involved in a child’s life usually wants to be actively involved from when the child is a young age. However, the child’s needs at the early stages of development can limit how much time the non-residential parent spends with the child.

There is good research about how much time a non-residential parent should spend with a child. Especially at a young age, a parenting schedule has to be designed around the needs of the child rather than the needs of the parent. Very young children need their routine, a single bed to sleep in, naps during the day, and possibly to breast feed. All of that can limit the amount of time that the non-residential parent can spend with the child. Fortunately, to develop a bond with a parent a child does not need to spend a lot of time with that parent, but does need to see them frequently.

Research shows that children benefit enormously from a close loving relationship with both of their parents. To develop that close loving relationship with a non-residential parent at a young age, frequency of contact is important. For a child who is only months or a couple of days old, a couple of days is a very long time. For an infant or toddler to build or maintain a relationship with a non-residential parent, the child must see that parent frequently: Every couple of days. However, especially for infants, it is not helpful for the child to be away from the primary parents for long periods of time, and definitely not overnight, as that can lead to a level of stress that not only induce the development of a relationship, but development in general.

It is also important that the non-residential parent spend time with the child if the child is scheduled and not the other way round. Routine is very important to young children. They also need their nap and to feed in their usual way at their usual time. This can make long visits impossible.

Fortunately, frequent short visits are what a young child needs to develop a close relationship with a parent. If a very young child has those frequent short visits, there will be a strong parent – child relationship that should evolve to include overnights after the child turns three years old and may further evolve into an equal sharing of time between parents during the child’s school age years.

Children’s relationship with their parents can be badly damaged, even destroyed, along with that child’s development and potential, by exposure to conflict. Frequent contact with both parents can seriously harm a child if that contact results in exposure to conflicts. Children’s experiences with this, especially when they are very young, affects both their brain development and how well they will interact with other people for the rest of their lives. Children who have positive experiences as their brain develops build neural pathways designed for learning (which increases intelligence) and interacting with others in a positive way. Children who are exposed to conflict structure their synapses to avoid and deal with dangerous environments. Their brain does not develop in a way that facilitates other types of learning (thereby limiting intelligence) or forming relationships with other people that are not characterized by conflict. Parents who are in constant conflict with each other must create a parenting plan that does not expose their children to conflict.

Good family lawyers and mediators know about child development and what a child needs from each parent. They can help create a parenting plan that, to the extent possible gives each child the benefits of a good relationship with each parent.

My Criminal Legal Career Takes Off (not really)

December 9th, 2011

They may just be first appearances, but considering I thought my criminal legal career ended with Student Legal Aid, it’s two more appearances than I anticipated.

A Fine Line Between Marketing and Spam

December 5th, 2011

In December 2010, Bill C-28 (formerly known as the “Fighting Internet and Wireless Spam Act (FISA)”) passed into law. FISA will prohibit certain forms of spam, phishing and the use of spyware in commercial activities. The stated intent of the legislation is to regulate commercial conduct that discourages the use of electronic means to carry out commercial activities, creating a more secure online environment.

The scope of FISA is quite broad and covers more than what many might colloquially refer to as “spam”. The new rules apply to all electronic messages sent to an electronic address, without prior consent, for the purpose of encouraging participation in a commercial activity, if a computer system located in Canada is used to send or access the message.

FISA sets out a number of exceptions to the requirement that prior consent be obtained. These include messages sent in the context of an existing business relationship between the sender and the recipient. However, for an existing business relationship to exist, the sender and the recipient must have done some business together in the two years preceding the date the message was sent, or if the recipient has made an inquiry to the sender in the previous six months. Where an exception to the consent requirement does not apply, the onus is on the sender to demonstrate consent was received prior to sending a commercial electronic message.

The penalties for non-compliance under FISA can go as high as $10-million for corporations. Officers, directors and agents may be held personally liable as well. FISA also provides for the commencement of civil actions beyond the statutory penalties.

While originally scheduled to take effect in September 2011, further consultations are ongoing and the law is not expected to take effect until mid-2012 at the earliest. This gives businesses some additional time to prepare and to implement systems to ensure they are in compliance with the new law.

If you have any questions on what you can do to comply with this new legislation, please contact Cory Schneider.

DSF mentioned in Globe and Mail article

December 2nd, 2011

Devry Smith Frank was listed as a “substantial law firm” in today’s (Dec. 2, 2011) Globe and Mail, check it out here.

How is property divided after a marriage in Ontario?

December 1st, 2011

In Ontario, married couples share in the wealth accumulated during the marriage. Common-law couples usually do not. This does not mean that married couples own all their assets jointly or have any other form of interest in each other’s property. Married spouses are entitled to a payment that “equalizes” the growth in the spouses wealth during the marriage.

At the end of a marriage, married spouses in Ontario are entitled to a payment that makes each spouse’s growth in net worth during the marriage the same. There are some exceptions which will be briefly discussed below. This is a right to receive a payment, similar to the right to receive a payment under a contract. This right does not give either spouse any form of ownership interest in the other’s property. At its simplest, the parties add up the value of all their assets on the date of separation, and deduct the value of all of their debts. From that figure, each spouse also deducts his or her net worth on the date of marriage (net worth being total assets minus totals debts and other liabilities.) That calculation results is a number called a spouse’s “net family property.” The spouse with the larger net family property has to make a payment to the other spouse to makes the two net family properties equal.

There are some important adjustments to the calculation of each spouse’s net family property. First, gifts and inheritances from third parties during the marriage are not included in a spouse’s net family property unless a gift or inheritance has been co-mingled with the other spouse. Second, spouses can exclude the value of specific assets from the net family property calculation by using a marriage contract. Third, the whole value of all matrimonial homes owned on the date of separation are included in the spouse’s net family property. A spouse does not get to deduct the value of a matrimonial home owned on the date of marriage if that property is still a matrimonial home on the date of separation. Fourth, the payment of a personal injury claim for pain and suffering is not included in the net family property calculation. However, the portion of a payment for personal injury relating to loss of future income may be included in net family property. Also, while spouses share any increases in their net worth during the marriage, they do not share in any decline in net worth during the marriage.
Judges cannot order that property change hands to equalize the spouse’s net family property. They can only order a payment of money. Such an order for payment is enforced in the same way as any other order for payment of money and can be significantly affected by a bankruptcy by one or both spouses. Spouses can agree to transfer property to each other in fulfillment of family law claims. That can be a significant incentive to settle matters outside of court.

The property claims arising from the breakdown of a marriage can be worth a lot of money. There are nuances to the law that can affect the size of the payment that is made. Family lawyers can ensure that a spouse’s rights are protected. If the spouses are resolving financial issues at mediation, it is important that they choose a mediator who understands the law well in order to obtain a fair result.

How People Find Lawyers: Referrals are Popular, Blogs not so Much

December 1st, 2011

Click here to read the post from the ABA Journal.

Can emails constitute a binding agreement of purchase and sale?

November 25th, 2011

In the recent New Brunswick decision of Girouard vs. Druet, [2011] N.B.J. No. 260, the Court held that an email exchange constituted a binding written agreement of purchase and sale. Girouard was interest in a particular condo building in downtown Moncton. After responding to a Kijiji ad regarding the rental of a unit in the building, Girouard discussed the possibility of buying the condo from Druet over the telephone. The parties agreed to carry on their discussion through email.

On October 24, 2011, Druet sends the following email to Girouard: “After giving the idea of selling my condo some more thought I have come to a decision. I would sell it to your for $160,000 conditional that you take over the current mortgage and pay the legal fees associated with the purchase. (I estimate about $800).”

That same afternoon, Girouard replies: “Thank you Kelty, I will meet you half way @ 155000.00 and pay legal fees and assume existing mortgage.”

On October 25, 2011, Druet writes: “Sorry for the late reply – I’ve been thinking about it. I will accept your offer. How would you like this to go?”
Girouard responds to Druet by advising that he can have a sales and purchase agreement drafted for Druet’s review. Girouard also asks Druet whether a November 15 closing date is acceptable and asks if the mortgage holder is a Moncton or Halifax bank.

Three hours later, Druet responds, “My partner has been in Peru the last few days and I just got to speak with him tonight about the condo. He was not agreeing with the price so I am sorry but I cannot sell to you.”

In Girouard’s last email, he maintains the position that the parties have a valid contract for the sale of the condo and intends to hold Druet to same.
It is not contested that Druet was the sole owner of the condo. Nor is it contested that the parties wrote the emails as produced. No closing date was agreed upon. No cash deposit was suggested or paid. I don’t even think that Girouard went to see the condo in question. Nonetheless, the Judge found a basis for binding written agreement of purchase and sale in the email exchange between the parties.

The Judge rejected Druet’s argument that Girouard’s email advising that he would provide a purchase and sale agreement suggests that the earlier emails were merely a contract to contract.

In his analysis, the Judge decided that the emails would constitute a binding purchase and sale agreement of the condo had the emails been written and physically signed. All of the following essential terms of a contract for the sale of land were found: an offer, an acceptance, the parties, the property, and the purchase price. The Judge noted that internet and emails have become a way of life for both business and individuals.

Leave to appeal has recently been allowed. We await the final determination of this decision.
It is not clear as to whether this case would have been decided differently in Ontario. Only time will tell!

Pain Clinic Conference

November 21st, 2011

DSF was a proud Platinum Sponsor of Toronto Rehab Pain Conference 2011 which was held on November 18th at the Hyatt Regence Toronto on King. Pain Management across the Continuum: Bridging the Gap from Acute Care to Rehabilitation and into the Community was a main theme and our lawyers: George Frank, David Derfel and David Schell presented Workshop 3: Barriers and Challenges, Providing Chronic Pain: A Lawyer’s Perspective.

Spousal Support… How Much Will I Get?

November 15th, 2011

Once you are able to prove you are entitled to receive spousal support (or, if you are the payor, once you have been advised that you will have to pay some spousal support to your spouse), the next question is, how much and for how long? There are no legislated guidelines for spousal support similar to the federal Child Support Guidelines for child support. The closest tool we have, which most judges are relying on, is the Spousal Support Advisory Guidelines, or the SSAGs, as commonly referred to. The SSAGs are extremely complex and it is advised that you speak with a family lawyer about your spousal support rights and obligations while using this tool.

The SSAGs take into account the parties’ ages at the time of separation, the length of cohabitation, the parties’ incomes, and how much child support is being paid, among other more complicated factors. Once this information has been plugged into the SSAG software program, a range of spousal support, both for the quantum and the duration, will be calculated. The range, based on quantum, will be set out using a low-end point, a mid-point and a high-end point on a scale. The mid-point is usually a good starting place to determine how much spousal support should be paid, although there are many factors to consider when determining a fair amount, both to the payor and to the recipient, while taking into account both parties’ standards of living and needs. For example, in cases where the recipient is disabled, spousal support based on the high end of the scale may be appropriate. Conversely, in situations where the cohabitation period was only two years, spousal support based on the low end of the scale may be appropriate. The range, based on duration, will be set out using an end date range that corresponds with the amount of time the parties cohabited together. In some cases where the parties have had a long-term relationship and one party earns a great deal less than the other, the duration may be calculated as “indefinite” using the SSAG program. This suggests that a time-limited period of spousal support may not be appropriate given the facts of the situation.

Spousal Support… Will I Get It?

November 15th, 2011

Spousal support is one of the more complex issues in family law. A spouse, whether married or common-law, does not automatically receive spousal support from the other spouse. In order to receive spousal support, one must prove that they are entitled to receive it. Proving entitlement under section 33(9) of the Family Law Act involves considering all of the following:

Both parties’ current assets and means;
The assets and means that both parties are likely to have in the future;
The dependant’s capacity to contribute to his or her own support;
The payor’s capacity to provide support;
Both parties’ age and physical and mental health;
The dependant’s needs (while considering the standard of living the dependant had while the parties resided together);
The measures available for the dependant to be able to provide for his or her own support and the length of time and cost involved to take those measures;
Any legal obligation of one of the parties to provide support for another person;
The desirability of one of the parties to remain at home to care for a child;
A contribution by the dependant to the payor’s career potential;
If the parties are spouses, the court will also consider:
1. the length of the cohabitation;
2. the effect on the spouse’s earning capacity due to the responsibilities assumed during the cohabitation;
3. whether the spouse has undertaken the care of a child who is older than 18 but has an illness, disability or other cause withdraw from parental control;
4. whether the spouse has undertaken to assist with the education for a child older than 18 or who is unable to withdraw from parental control;
5. any housekeeping, child care or other domestic service performed by the spouse for the family;
6. the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and,
Any other legal right of the dependant to support, other than out of public money.

The conduct of the parties is only relevant if one party’s conduct is “so unconscionable as to constitute an obvious and gross repudiation of the relationship”. Therefore, the fact that one spouse may have had an affair or the parties signed an agreement opting out of spousal support when it would be grossly unfair in the circumstances, may not enough to extinguish the obligation of one spouse to pay support to the other if that person is a dependant and entitled to receive spousal support. It may, however, affect the quantum.

Independent vs. Dependant Contractors – What’s the difference?

November 14th, 2011

There are many examples of people who are employed in the workforce as “independent contractors”, such as independent sales agents, consultants, legal professionals, just to name a few. However, just because an employment contract states the employee is an “independent contractor/agent”, doesn’t necessarily mean that such an employee is “independent” for the purposes of employment rights. An “independent contractor” may in fact be a “dependant contractor”, or even a full-fledged employee, which changes their entitlements quite drastically.

In a 2007 Ontario Superior Court of Justice case, Slepenkova v. Ivanov, the employee, who was employed as an “independent contractor” real estate agent for a firm operating under a brokerage, was deemed to be an employee for the purposes of determining reasonable notice upon termination of employment. The plaintiff employee had signed multiple agreements over a 3 year period, agreeing to work for the defendant employer as an “independent contractor”. However, the plaintiff had also initially signed a general employment agreement with the real estate brokerage that employed her employer, which contradicted her subsequent agreements with the defendant employer.

In determining the issue of the nature of employment, the Trial Judge, considering the existing agreement between the plaintiff and the real estate brokerage, took note of the following factors:

That the employer had substantial control over the employee;
the employer owned and provided the majority of the tools the employee used in the course of her employment duties;
the employee’s chance for profit was limited;
the employer bore most of the risk of loss;
the business was clearly the employer’s.

The above factors, all answered in the affirmative, clearly demonstrate that, regardless of the label given to an employee in an employment contract, employers cannot contract out of their obligation to provide reasonable notice upon termination, among other entitlements afforded to employees under statutes such as the Employment Standards Act, as well as the common law, merely by stating that an employee is an “independent contractor”.

Thin Skulled Plaintiffs may be able to Collect on Chronic Pain

November 14th, 2011

When someone gets injured in an accident, any claim for damages must stem from injuries that resulted from the accident in question. In Heyward v. Young, a Nova Scotia Supreme Court case decided in 2011, the Plaintiff, who was injured after the defendant driver t-boned his car, suffered from severe migraine headaches, and an MRI of his head post-accident revealed residual scarring to the inferior frontal lobe. At trial, the Defendant produced evidence to support, on a balance of probabilities, the fact that the sustained brain injury had resulted from an unrelated assault on the Plaintiff 15 years prior to the accident.

The Plaintiff’s pre-existing susceptibility to brain injury, making him a “thin-skulled” plaintiff in legal jargon, removed the causation element required to prove that, but-for the motor vehicle accident, he would not have suffered the brain injury. However, the Plaintiff’s migraine headaches, which did materialize after the accident, and developed into long-term chronic pain syndrome, were recognized to be directly attributed to the accident in question. Despite the fact that a pre-existing condition may have exacerbated the chronic pain, the Plaintiff was still awarded a sizeable general damage award, as well as a modest future care award.

Medical Examinations and Employee’s Right to Privacy

November 8th, 2011

Though employers are legally responsible to maintain a healthy and safe workplace, that responsibility must be weighed against an individual’s right to privacy regarding his or her medical conditions. As such, if an employer has a legitimate purpose tied to the employer- employee relationship, it may be justified in requesting medical information regarding an employee. That being said, the extent of the information to be divulged should be limited to the extent to which the employee can perform his or her job function, and not necessarily the nature of the illness or injury.

The Declining Role of “Character of Employment”….

November 7th, 2011

The Declining Role of “Character of Employment” in Determining the Notice Period

“Character of employment” is one of the four factors that the courts consider in determining the notice period when an employee is wrongfully dismissed (the other 3 are age, length of service, and length of time needed for the employee to find a new comparable job). Typically, an employee who worked in an executive, managerial or skilled position is entitled to a longer notice period than an employee whose job is clerical or administrative in nature. This is an example of how the courts have dealt with the “character of employment” factor. The assumption was that there are more higher level positions available than administrative jobs, which means that an employee seeking a new managerial job would typically take longer to find employment than a recently terminated administrative employee.

In Di Tomaso v. Crown Metal Packaging Canada LP, the Ontario Court of Appeal recently considered what the appropriate role of an employee’s “character of employment” should be in determining the notice period. In this case, the employee worked for 33 years as a mechanic and press maintainer, and admitted that this was an unskilled labourer position. At trial, he was awarded a 22 month notice period. Despite the employee’s many years of service, the employer argued for a reduced notice period on the basis of the “character of employment.”

In upholding the 22 month notice period, the Court of Appeal suggested that character of employment is “a factor of declining relative importance,” especially when an employer “attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment.” It is a proposition that “cannot simply be taken for granted, particularly in today’s world.” In other words, we cannot simply assume that an employee seeking a new managerial job will take longer to find employment than a recently terminated administrative employee, and that the managerial employee should therefore be entitled to a longer notice period.

Do Human Rights Bodies Have Jurisdiction to….?

November 7th, 2011

Do Human Rights Bodies Have Jurisdiction to Award Legal Costs to the Successful Party?

In legal proceedings that have been commenced in court, the party who is successful at trial is generally entitled to recover a portion of their legal costs from the opposing party.

The Supreme Court of Canada recently considered the question of whether a party who has succeeded at a hearing at the Canadian Human Rights Commission should also be awarded a percentage of their legal expenses, to be paid by the other side. More specifically, the court considered whether the provisions of the Canadian Human Rights Act which authorize the Tribunal to “compensate the victim for any expenses incurred as a result of the discriminatory practice” permit an award of legal costs.

The Supreme Court ultimately decided that the Tribunal had no authority to award legal costs, since “costs” are to be distinguished from “compensation” and “expenses.” The court further commented that the lower court decision, which would have permitted a costs award, made its decision based on what it thought was a beneficial policy outcome, rather than engaging in a proper legal analysis.

This decision will hopefully encourage the government to amend the Canadian Human Rights Act, and other provincial human rights legislation, to permit human rights bodies to award costs. This way, employees with valid human rights complaints will be encouraged to continue bringing them, and employers would be able to recover legal costs from employees who initiate frivolous human rights complaints.

Access Assessments Help Courts Decide Who Should Parent the Kids

November 6th, 2011

Judges sometimes feel that they do not have the proper training to determine what is in a child’s best interests, because a judge’s training is in the law and not in child welfare. In difficult cases, they may want to have a child-focused mental health professional provide advice as to what the custody/access or parenting plan should look like. Often, parents agree that the court needs help from a professional to determine who should parent the children. However, a judge who feels that there are clinic issues that are outside the scope of the judge’s legal training can order such an assessment to investigate those issues.
Custody/access assessors are social workers, psychologists or psychiatrists who are familiar with how to conduct custody/access assessments and regularly do that type of work. They meet with the lawyers, and then with the parties, usually several times, sometimes together and sometimes apart. The custody/access assessor usually meets with the children as well. Often the assessor will speak to other professionals and other people who are important in the children’s lives.
One or both of the parties pay for the custody/access assessments. It is rare for such assessments to costs less than $10,000.00. If the parents cannot afford that amount, the court can ask the Office of the Children’s Lawyer to become involved in the case. That publically funded agency can decide whether to accept the referral and what type of assistance it will provide. It may decide to provide a “clinical investigation”, which is a similar to a custody/access assessment. If the Office of the Children’s Lawyer refuses to assist, then a judge can still order a custody/access assessment even if it will cause financial hardship for the parents.
At the end of this process, the assessor forms an opinion as to which parent should make which decisions regarding the children and what time the children should spend with each parent. The assessor then communicates his or her opinion to the parties. If the parents do not agree with that opinion, the custody/access assessor’s role is limited to being a witness at trial. The Trial Judge can accept or reject the assessor’s opinion. However, the opinion of a custody/access assessor is usually very persuasive to a judge.

Joint, Sole, Shared, Split…Custody in a Nutshell

November 4th, 2011

For most people, the term “custody” brings about thoughts of who will see the children when and how much time each parent will see the children after a separation. In legal terms, “custody” has very little, if anything, to do with scheduling each parent’s time with the children. Custody, in the legal sense, refers to who makes the important decisions regarding the children.

I am often asked, “What are the important decisions?” The major decisions include decisions related to the children’s health, education, religion and extra-curricular activities. The day-to-day decisions involving the children, such as what they will wear and eat, are typically made by the parent who is caring for the children on that particular day. The major decisions, however, are made by the parent or parents with custody.

Until a court order or a written agreement is made to the contrary, there is a presumption in law that both parents have custody of the children. Both parents are presumed to start off on an equal footing once they separate (whether that is the reality or not is an entirely different issue!). Joint custody means that the parents are able to co-parent together to make major decisions about the children mutually.

Sole custody, on the other hand, involves only one parent making the important decisions about the children. In most cases, a court order or written agreement is necessary for one parent to have sole custody. In some cases, one parent may have what is called “de facto” custody, which means he or she may temporarily make the important decisions regarding the children solely, as a result of the other parent leaving the family or matrimonial home. One should not assume, however, that as a result of the other parent leaving, he or she has sole custody.

Shared and split custody scenarios, although using the word “custody”, really have less to do with the decision making for the children and more to do with the time each parent has with the children and the effect on child support. Shared custody, which is defined under section 9 of the Child Support Guidelines, is a situation when the children spend at least 40% of the time with each parent. Split custody, as defined under section 8 of the Child Support Guidelines, involves a situation when each parent or spouse has custody of one or more children (i.e. the children are split up between each parent). There are special rules that apply to these types of situations in terms of paying child support.

Determining custody is often much more complex than what I have outlined here. If you have recently separated and have children with your spouse, sorting out custody will likely be your main priority. For assistance with this, please consult with one of our family lawyers and we will be happy to help you determine what is best for your children and your family.

Court of Appeal Upholds Damages for Mental Distress Against Insurer

November 4th, 2011

The Ontario Court of appeal in McQueen v. Echelon recently upheld a Jury’s award of $25,000.00 in damages for mental distress arising from the insurer’s improper handling of an insured’s Accident Benefits.

The Court of Appeal confirmed as follows:

…People purchase motor vehicle liability policies to protect themselves from financial and emotional stress and insecurity. An object of such contracts is to secure a psychological benefit that brought the prospect of mental distress upon breach within the reasonable contemplation of the parties at the time the contract was made….Ms. McQueen was entitled to that peace of mind and to damages when she suffered mental distress on breach.

At Devry Smith Frank we carefully consider what the Court of Appeal looks for in a claim for mental distress against an insurer such as: the number of denials, lack of information about reasons for the denials, reliance on inadequate Insurance Examinations, strong evidence of medical need for the benefits and the adversarial approach taken by the insurer in adjusting the file.

5 Random Things I’ve Learned in the First 3 Months of Articling.

November 2nd, 2011

1. Sleep is for the weak.
2. When work is due, your printer will automatically jam.
3. Lunch is a good source of extra work time.
4. Support staff are priceless.
5. Gray hairs don’t appear one at a time, they brings friends.

SCC rules hyper-links to defamatory content is not defamation

November 2nd, 2011

Check out this article in the Globe and Mail regarding hyper-links and defamation.

Teachers and Schools Beware – Kids are owed a duty of care

November 2nd, 2011

While physical education has been and will continue to be a critical part of grade school, teachers and administrators mustn’t forget their responsibility to care for their students beyond the boundaries of the classroom. In a 2009 Supreme Court of British Columbia case, Hussak v. School District No. 33 (Chilliwack), the court found that a gym teacher had failed to ensure that the injured plaintiff, one of his students, had been adequately trained in a sport that he was forced to participate in as part of the school curriculum. The plaintiff was partaking in a field hockey game, with no prior training in the sport, and was unintentionally struck in the face by another player. The plaintiff suffered a concussion, soft tissue bruising and swelling, and lacerations to several parts of his face. Unfortunately, these injuries persisted for years, and the plaintiff developed a serious chronic pain disorder, which included ongoing migraines, distorted vision, body tremors, muscle aches, and severe chest pain.

The main finding of this case was the establishment of a four-part test for determining whether or not a teacher meets a standard of care threshold:

a) whether the activity was suitable to the age and mental and physical condition of the student;
b) whether the student was progressively trained and coached to do the activity properly and to avoid the danger;
c) whether the equipment was adequate and suitably arranged; and
d) whether the performance, having regard to its inherently dangerous nature, was properly supervised.

The court found that the plaintiff student, having missed all the classes related to field hockey training, lacked the essentials skills necessary to participate in the sport, and that the gym teacher should have prevented him from participating with the class that afternoon.

As negligence on the part of the plaintiff was ruled out, and the injuries were found to be caused by the field hockey incident, the plaintiff was awarded substantial damages for pain and suffering, past and future income loss, and future care costs.

While school yard sports aim to be inclusive, and provide the opportunity for all students, regardless of athletic ability or interest, to participate, schools and teachers must remember their obligation to prevent students from falling behind and suffering the consequences.

I keep hearing about Mediation…is this for me?

November 1st, 2011

Mediation is a process whereby the parties meet with a neutral third party mediator to try to resolve the issues between them that they are unable to resolve on their own. The mediator is not allowed to make a decision regarding the issues in dispute. Rather, the mediator’s role is to assist in facilitating an agreement that the parties come up with themselves. If the parties reach an agreement at mediation, the agreement will become part of a Memorandum of Understanding and later, will form part of a Separation Agreement. While the terms of a Separation Agreement are binding, if no agreement is reached in the mediation process, in most cases, neither party can use whatever was said during the process against the other in a different process, such as court.

Whether or not your family law matter can proceed by way of mediation depends on a couple of things:

Firstly, it depends on whether your spouse is agreeable to proceeding through the mediation process. If both parties are not entering into the mediation process voluntarily, the process will likely fail.

Secondly, if there is any form of domestic violence or a power imbalance that would lead one party to intimidate or compel the other into making an agreement they may not otherwise want to make, the mediation process cannot move forward. The mediator will be trained to screen for these power imbalances.

People going through a difficult separation are often drawn to a process, such as mediation, which allows them to be in control of the decisions that are directly affecting their family, as opposed to having a judge impose a decision on them (typically after waiting for months, or years, for this to happen). You may choose to have your lawyer very involved or less involved in the mediation, depending on the complexity of your case. Even if your lawyer is involved in all aspects of mediation, mediation is almost always a cheaper and quicker alternative to court. This may be the route for you. Please give our family law team a call to discuss this and other alternative dispute resolution options available.

What about my son’s hockey fees and my daughter’s daycare expenses?

October 21st, 2011

If you are the payor of child support, you may also have to contribute to your child’s hockey fees and daycare expenses on top of making your monthly child support payment. These expenses may fall into the category of “special or extraordinary expenses”, which is defined in Section 7 of the Child Support Guidelines. Another name for “special or extraordinary expenses” is “section 7 expenses” or “add ons”. If an expense is determined to be a “special or extraordinary expense” under section 7 of the Child Support Guidelines, the cost is generally shared between the parents, proportionate to income, after the appropriate tax deductions are subtracted.

Pursuant to section 7 of the Child Support Guidelines, a court may apportion the net cost of certain “special or extraordinary expenses”, so long as they are reasonable and necessary, having regard to the best interests of the child. The list of what may constitute a “special and extraordinary expense” is exhaustive. It includes items such as child care expenses that are incurred as a result of the custodial parent’s employment, disability, illness or educational training, medical, dental and some other health-related expenses, extraordinary educational expenses, post-secondary educational expenses, and extraordinary expenses for extra-curricular activities.

Although the law is not entirely clear on whether the expenses listed in the paragraph above are “extraordinary”, the trend is to consider the family’s expenses in relation to income. Generally, a child will have some small fees for extraordinary activities, and these would not require additional child support.

In order to determine whether you should be paying or receiving additional child support for your child’s special or extraordinary expenses, please contact one of the lawyers in our Family Law Department.

Poker Night

October 14th, 2011

On October 13th, DSF had one of its infrequent poker nights! In the end, it came down to Marty Rabinovitch and Igor Poroger. Igor came out on top. Congrats Igor!

How Long for an Ontario Divorce?

October 12th, 2011

See Julie Tyas describe the length of the divorce process in Ontario. www.youtube.com

Construction Update

October 5th, 2011

Today, October 5, 2011 our building received the very first set of glass and we can actually see our future reception/entry door.

Wrongful Dismissal or Frustration of Contract?

October 4th, 2011

If an employee is off work for an extended period of time due to illness or disability, is the employer entitled to terminate the employment contract? Or would this be considered a wrongful dismissal?

A contract is frustrated when it becomes incapable of being performed when new circumstances arise, by no fault of either party, that would turn the contract into something completely different than what was initially contemplated.

To avoid a wrongful dismissal claim, the employer must prove that the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

In assessing whether an employment contract has been frustrated, the court will consider the following factors:

1) the terms of the contract;
2) how long the employment was likely to have lasted but for the illness;
3) the nature of the illness/injury;
4) how long the illness/injury had lasted and the prospects of recovery; and
5) the period of past employment.

If an employment contract is found to have been frustrated, the employer would have no common law obligations to the employee. However, the employer must still ensure that they comply with their obligations under the relevant employment standards legislation.

What is the “table” I keep hearing about in relation to child support?

September 26th, 2011

The “table”, as commonly referred to, means the Federal Child Support Guidelines table. This table, which has been in effect since May 1, 1997, is a grid setting out what the payor of child support must pay to the recipient based on his or her income and the number of children. Judges are reluctant to sway from applying the table amount of child support in family law cases, except in extraordinary circumstances, such as cases of undue hardship. Proving that you are unable to pay the table amount of child support based on undue hardship is not as easy as it sounds. That being said, if you are the payor of child support, you should be paying the table amount of support based on your income.
In situations where the payor sees the children for more than 40% of the time (which is called a “shared parenting” arrangement), the payor should not have to pay the full table amount of child support. In these types of arrangements, a “set-off” should apply. In other words, you should calculate the table amount that the payor would pay if he or she had the children less than 40% of the time and subtract what the other parent would theoretically be paying based on his or her income if he or she had the children the majority of the time. The difference is what the payor should be paying.
For more information, please contact one of the family lawyers at DSF and pick up a copy of John Schuman’s book, Guide to the Basics of Ontario Family Law.

The Importance of Warnings

September 26th, 2011

Employers beware! If you are considering terminating an employee for just cause (to avoid giving the employee a severance package), it is important to give verbal and written warnings, and to document all incidents. The employer should also not condone any inappropriate behaviour by the employee, such as perpetual lateness. In one case, an employee was late for work 57 times in about 5.5 months, but the court found that there was no just cause for the termination because the employer had condoned the behaviour!

It’s the Only Way You’ll Learn

September 22nd, 2011

Day 1

Lawyer #1: I want you to prepare all relevant materials to direct a judgment debtor’s examination being held tomorrow.

Student-at-Law: I’ve never even seen a judgment debtor’s examination; are you sure I can direct one?

Lawyer #1: It’s the only way you will learn. Review all the files and prepare all the materials. Don’t worry, you’ll do fine, and besides, the debtor never shows up anyways.

Student-at-Law: If the debtor isn’t going to show up, why do I need to prepare the whole examination?

Lawyer #1: It’s the only way you’ll learn.

4 hours of prep time and 2 hours spent in traffic later.

Day 2

Lawyer #2: Hey, did the debtor show up this morning?

Student-at-Law: No.

Lawyer #2: Ha.

Larry Keown interviewed for Ryerson Journalism Article

September 16th, 2011

Senior partner, Larry W. Keown is quoted in this article from the Ryerson Review of Journalism. Check it out!

Appease the Gods

September 14th, 2011

Graduate law school, complete your articles, become associate, work diligently, make partner. That’s the end goal for many of us. How is it accomplished? Any number of ways arguably, however, the one common thread is working countless hours and making sure the work is top notch. Appease the clients and more certainly, for a student-at-law, appease the lawyer that feeds you the work. With billable hours a necessary evil of accountability to both, the firm and the client, the student-at-law must become an efficiency machine in order to keep everyone happy. Within two weeks of starting my articles I had a decent flow of work coming in and a solid handle on effectively completing it and getting it back to the assigning lawyer and/or client. Still, I felt the need to ask for more in order to further my pursuit of the end goal. Two words, big mistake. Here I am, a little over one month in and I can barely see over the files piled on my desk.

September Newsletter

September 14th, 2011

The regular DSF newsletter has been published. Please find a copy of it at Issue 5 (2011-09-14). Articles in this issue are:

Patent and Latent Defects
Liability of Real Estate Agents on the Rise
Grandparent Rights
Taking a DIP
Employee Liability on Blogs and Facebook
More Join theTeam

Check it out today!

When Should I Separate?

September 7th, 2011

Well, that depends on whether you fall within the “norm” of separating couples. As recently reported in The Globe and Mail[1] , September and January are the busiest months of the year for family lawyers. The family lawyers at DSF are not excluded from this trend. There are many speculations about why the start of a new school year and the start of a new calendar year lead people to take what is often the first step in separating from their spouse: consulting a family lawyer. Both September and January are months that mark change for many people. Both times of year symbolize the return to work and both symbolize the end of a period usually filled with a great deal (perhaps a great deal too much?!) of vacation time with one’s spouse. Nobody wants to kick off or interrupt their summer vacation or Christmas holidays with a letter to their spouse from their new lawyer. So people wait. They wait until now, when our phones are ringing off the hook.

Perhaps it does have to do with the fact that people often make changes and new resolutions for their futures in September and January. Or, perhaps it has to do with choosing to enjoy “one last summer” or “one last holiday season” with the family before taking active steps to separate. Either way you view it, our family law team is accustomed to and prepared for the shift in new clients that come to us this time of year. So please give us a call; we can handle the September separation movement and are here to help.

[1] http://www.theglobeandmail.com/life/relationships/love/divorce/hello-september-so-long-spouse/article2150593/

The Life of a Student-at-Law

September 1st, 2011

So there I was, a full two weeks of vast legal experience under my belt and being called into the managing partner’s office for a meeting. All that hard work and finally I was due to receive a hearty handshake and hopefully a big time file to sink my teeth into.

As students-at-law we have been through the trenches to get where we are; undergraduate programs, LSAT exams, law school applications, three arduous years of schooling, bar exams and all the while with the general pursuit of landing a law firm job as the shining light at the end of the tunnel.

Of course I was well aware that my role was mostly going to be comprised of researching, motion and memo drafting, and whatever other works the real lawyers disliked the most, but I was proud to be entering a professional designation that I had been working so diligently to reach. The truth is, as a student-at-law, or articling student as we’re more commonly known outside the legal realm, we are nothing more than the very bottom rung of the lawyer hierarchy.

All that work and dedication and here I am, assigned to writing a blog about the very thing I’ve been pursuing instead of the work I hoped to be doing. Yet another dire task that further reminds me of the notch on the rung that keeps me in my place.

This is just the first post in a series that will continue through Leonard’s time as an articling student at DSF.

Bank Executives with Stock Options Face Difficult Divorces

September 1st, 2011

Some bank executives receive part of their compensation through stock options. They represent a great way to be compensated because the executive can receive pay at a lower tax rate. If the stock goes up in value the benefits are even greater. However, stock options create big problems in divorce proceedings.

Stock options can be both property, and income for support in divorce proceedings. They are property, the value of which must be shared as of the date of separation. Determining the right value for the stock options is difficult, as it depends on when the executive earned the options (not when the company issued them), when the executive can exercise the options, when the executive will exercise the options, the volatility of the stock price, the risk that the executive never exercises the options and the taxes associated with them. Stock options existing on the date of separation will be equalized as property, even though the executive may not be able to exercise them until later. The executive may not be able to make an equalization payment until the he exercises the options.

Bank executives may have to share his stock options twice! To the extent that stock options are pay, they are income when calculating support. The stock options at the time of separation may not show up on the executive’s tax return for several years until they are exercised. At that time, the other spouse may want to use them as income for calculating support, even though she has already received half the value. Using the same stock options for both property and support calculations can result in the other spouse receiving payments worth more than the value of the options. That is not fair. Careful attention is needed to prevent it.

A marriage contract can set out fair terms for the stock options on separation. Without that, both separated spouses need skilled family law lawyers to assist with the complicated issues associated with stock options.

Damages for a Breach of the Human Rights Code – An Overview

August 31st, 2011

If an employee has been terminated, and one reason for the termination relates to a prohibited ground of discrimination, such as ethnic origin, religion or gender, the employee would be entitled to additional compensation from the employer. The employee has the burden to establish a prima facie case of discrimination, on a balance of probabilities. If the employee is able to do so, the burden then shifts to the employer to prove, also on a balance of probabilities, that the reasons for termination were unrelated to any prohibited grounds of discrimination.

Direct evidence of discrimination is not required in order for an employee to be successful on this type of claim. The decision-maker is permitted to draw an inference that discrimination occurred based on the facts presented.

An employee who believes they have been subjected to a discriminatory termination from his or her employment has the option of commencing a claim in the civil courts or at the Human Rights Tribunal.

The Human Rights Tribunal has the authority to award a wide range of remedies to the individual whose human rights have been breached. Some of these remedies have included requiring the employer to write a letter of apology to the employee, and to require the employer to complete a session of training with a human rights lawyer.

Construction Update

August 30th, 2011

Yesterday (August 30th, 2011), our future expansion received a roof and today concrete was poured on the first floor.

Corporate Health and Wellness

August 30th, 2011

For more than 10 years, research has been showing the effectiveness of ‘Corporate Health and Wellness’ programs.

These programs are implemented to increase productivity through lower absenteeism, and increase individual employee effectiveness while at the same time decreasing costs associated with healthcare benefits/insurance schemes.

Studies have proved that these programs are cost-effective and foster healthier lifestyles for employees. Harvard Business Review: What’s the Hard Return on Employee Wellness Programs?

Health and Wellness programs consist of providing institutional and cultural support for activities that help employees achieve health-positive goals. An easily achieved zero-cost example can be the introduction of a lunch-hour walking club.

Devry Smith Frank LLP (DSF) has started its own Health and Wellness program by:

replacing high-fat, high calorie snacks like cookies, with fresh fruit, granola bars and fat-free yogurt.
partnering with a nearby fitness centre to establish a lower monthly membership fee for firm employees.
providing office space for twice weekly ‘in-house’ workout sessions for interested employees
providing an annual on-site influenza vaccine clinic
offering financial assistance to firm employees for smoking cessation aids
providing first-aid/CPR coaching

Although, DSF has done much to promote employee health and well-being, the firm continues to look for new avenues to achieve the above-stated goal. The new office space under construction will help by providing private showers/change area, a bicycle storage room and a larger multi-purpose room.

You can find more about information specifically about non-smoking programs at the following websites:

Smoke-Free Environment

Smoking can be a Drag for Law Firms

What is an Adequate Notice of Employment Termination

August 29th, 2011

There is no hard and fast rule as to what constitutes adequate notice of termination. In the absence of an employment contract dealing with termination, the courts look at employment statutes and cases to determine what is an appropriate amount of notice of termination for each individual. The courts take into consideration such things as: age, length of employment, duties, length of time it would reasonably take to find comparable employment.

On What Grounds can an Employee be Termina