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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 Terminated?

August 24th, 2011

An employer is entitled to terminate an employee for virtually any reason so long as the employer provides adequate notice, or pay in lieu of notice, of the termination and so long as the reason for the termination is not related to the employee’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex-partnership status, family status or disability. If the termination is related to one of those grounds listed, than there has been a contravention of the Ontario Human Rights Code with respect to which a claim may be made to either a Judge of the Court or an arbitrator at the Human Rights Tribunal. The Courts are empowered to make monetary awards to a wronged employee. The Tribunal is empowered to make orders both requiring monetary compensation as well as reinstatement of employment.

Once I have separated, do I have to go to court?

August 23rd, 2011

There are various paths you can take that do not involve going to court:

1. I recommend retaining a lawyer who practices exclusively in the area of family law. This lawyer will be more proficient with the provincial and federal family laws to negotiate a separation agreement for you in a manner that is both cost and time efficient.

2. Depending on the circumstances of your case, you may also participate in the collaborative law process. Most of the lawyers in the family law department have been trained as collaborative family law lawyers. The collaborative law process involves a written commitment to resolve your family law issues through a series of meetings between lawyers and parties and most importantly, involves a commitment to not go to court.

3. Once you and your partner have each retained separate lawyers and financial disclosure has been exchanged, negotiations regarding support, property, custody, access and other more complicated family law issues can take place.

4. Often negotiations take place through four-way meetings with the parties and their lawyers.

5. If negotiations break down, parties can enter into a mediation/arbitration agreement. This involves signing a contract to participate in mediation with an independent and neutral third party, who is often a senior family law lawyer and proficient in all areas of family law. Mediations can resolve issues in as little as half a day or can be continued over weeks.

6. Should mediation fail, the mediation/arbitration agreement will bind you to then participate in the arbitration process, usually with the mediator who then switches hats and becomes the arbitrator. Arbitrations are conducted the same way a trial is conducted and the award provided by the arbitrator is as binding as an order made by a judge at the conclusion of a trial. The benefit of proceeding by way of mediation/arbitration is that most files are resolved at the mediation stage and those that are not are often resolved much quicker in arbitration than trial.

7. The last way to resolve your family law dispute is through the court system. Before you are entitled to have your case heard at a trial, however, there are a series of steps you must participate in first. These steps include one or more case conferences, settlement conferences and trial management conferences. In addition, motions for temporary orders may be heard throughout the process. Because of the numerous steps involved before a case is heard at a trial, most cases do end up settling before they get to trial.

In summary, there are many alternate dispute resolution mechanisms that are available to you once you separate that do not involve going to court. I encourage you to speak with one of the family law lawyers at Devry Smith Frank to determine which route is best for you and your particular needs.

DSF under Construction (Literally)

August 23rd, 2011

If you haven’t visited us yet or in awhile, we are under construction. A new addition is being added to the front of our building. DSF has chosen to take all the space in this new space.

At the same time we are re-configuring some of our existing space to better suit our larger presence. Along with a greater number of offices and workstations, we will have a new reception area, more boardrooms, a multi-purpose training/meeting space, library, showers, lockers and private washrooms.

Construction is still in early stages, we hope everything will be complete early in the New Year.

Here are some pictures of how it looked before and what’s happening now:

DSF’s New Blog

August 17th, 2011

Hello and Welcome!

Devry Smith Frank is starting a new journey online by creating this blog. Here you will find topics related to the law, the goings-on of our firm and much more.

We sincerely hope that it entertains as it does inform. If you have any questions about anything, please contact us!

You can always reach us at 416.449.1400 or info@devrylaw.ca Each post will include the contact details of the poster, if you wish to communicate with him/her directly.

Come back here often as we plan to have new entries all the time.

Devry Smith Frank LLP
Lawyers & Mediators