Common Law Relationship? You Do Not Have the Same Rights as Married Spouses in Ontario Defining a Spouse Under the Family Law Act Under the Family Law Act, RSO 1990, c F3 (FLA) a spouse is defined as two persons who are legally married unless otherwise noted. Common law partners are considered a spouse under certain sections of the FLA and are defined as two persons who are not married to each other and have cohabited for a period of not less than three years. However, this is not the case when awarding property rights. Under the FLA, common law partners are not entitled to the same property rights as married spouses. More specifically, common law partners are not entitled to the equalization of net family properties. Equalization of Net Family Properties Under the FLA, when a divorce is granted or spouses separate with no reasonable prospect of resuming cohabitation, the spouse whose net family property is less than the other’s is entitled to one-half of the difference between them. As discussed above, in Ontario, this right is only available for married spouses. Common law partners are not awarded these rights and must establish an interest in property when seeking to equalize property. This process can be quite complicated. The Push for Common Law Partners’ Entitlement Over the years, as common law is becoming more and more common, there has been a push for common law partners to be entitled to the same rights as married spouses in Ontario. As mentioned above, there is a process that common law partners can take in order to establish a property right. As a common law partner, you would need to make a claim for a constructive trust if you contributed to the value of an asset and believe your partner would be unjustly enriched if they were to retain the full value of this asset. This process can be complex and relies on the court process, therefore creating a lengthy delay in gaining your property entitlement. British Columbia has re-visited their old family rules and now award all of the same rights to common law partners as married spouses. So why not Ontario? Until our FLA re-visits the definition of spouse under the property regime, if you are in a common law relationship, it is important that you understand that you are not entitled to the same property rights as married spouses. For more information on this issue or other Family Law topics, please contact Kenna Bromley at Devry Smith Frank LLP at (249) 888-6641 or kenna.bromley@devrylaw.ca This blog was co-authored by law student Samantha Lawr. By AlyssaBlog, Family LawSeptember 18, 2023September 19, 2023
Ontario Court of Appeal Rules Creditors May Challenge Fraudulent Conveyances Existing Prior to the Debtor-Creditor Relationship In the recent case of Ontario Securities Commission v. Camerlengo Holdings Inc., 2023 ONCA 93, the Ontario Court of Appeal (ONCA) determined that when property is conveyed with a general intent to defraud creditors, the transfer can be contested by subsequent creditors, irrespective of their creditor status at the time of the transaction. Background The personal respondents, Fred and Mirella Camerlengo, are spouses who purchased a family home in 1988 as joint tenants. Fred is the sole director and shareholder of the corporate respondent, Camerlengo Holdings Inc. (“HoldCo”). In February 1996, Fred and his business partner established Gridd Electrical Services Inc. (“Gridd”), an electrical contracting business that operated through various corporations such as HoldCo. Both Fred and his business partner transferred their family homes to their respective spouses without any consideration. The transfers were facilitated by the same lawyer, and on the same day. Following the transfer, Fred continued residing in the family home, which Mirella occasionally mortgaged to support Fred’s business endeavours. Fred and Mirella allegedly made the transfer due to concerns about Fred’s potential exposure arising from their rapidly expanding electrical services business, which involved undertaking high-risk projects. In 2011, financial troubles arose for Fred and to address this, Fred obtained a $200,000 loan through Bluestream International Investments Inc. (“Bluestream”). Bluestream came under scrutiny from the Ontario Securities Commission (OSC) when its business associate was discovered to be engaging in fraudulent activities, including trading without registration, and unlawfully distributing securities in an investment scheme. In 2018, the OSC issued a disgorgement order against Bluestream on behalf of the defrauded investors, leading the OSC to initiate a lawsuit against Fred, Mirella and HoldCo to recover the loan amount. The OSC challenged the 1996 transfer of Fred’s interest in the family home to Mirella, alleging that the transfer was made fraudulently, with the intent of avoiding future creditors. Motion to Strike Fred and Mirella brought a motion to strike the statement of claim on the basis that the OSC’s pleadings did not disclose a reasonable cause of action. The motion was dismissed, except with respect to the claims of fraudulent conveyance. The motion judge considered section 2 of the Fraudulent Conveyances Act (FCA), which states: Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns. The motion judge concluded that because Bluestream, and consequently OSC, were not creditors when Fred transferred his interest in the home to Mirella, they did not fall under the category of “creditors or others” per section 2 of the FCA. Court of Appeal overturns Lower Court Decision The Court of Appeal (ONCA) overturned the motion judge’s decision, ruling that the law against fraudulent conveyances can still apply to transfers made to avoid potential future debts. Citing IAMGOLD Ltd. v. Rosenfeld, [1998] O.J. No. 4690, the ONCA clarified that a subsequent creditor, one who was not a creditor at the time of the transfer, can challenge the transfer if it was intended to “defraud creditors generally, whether present or future.” To support the inference of an intention to defraud creditors, the ONCA outlined various “badges of fraud,” such as the debtor’s precarious financial state at the time of the transaction, the existence of family or close relationships between parties, divestment of a substantial portion of assets, and evidence of defeating, hindering, or delaying creditors. The OSC presented several relevant facts in their plea, which the ONCA found compelling in inferring an intention to defraud creditors: Fred transferred the property to his wife without consideration; The transfer occurred after 16 years of joint ownership and 4.5 months after incorporating Gridd with his business partner; Fred and his business partner used the same lawyer to transfer their family homes to their wives simultaneously; The transfer coincided with Fred’s concerns about personal liability from his rapidly expanding high-risk electrical contracting business; and Despite the transfer, Fred continued treating the property as his own. Based on the above, the ONCA found sufficient grounds to support the inference of an intention to defraud creditors, allowing the OSC’s claim to proceed. Conclusion The ONCA’s ruling has significant implications for cases where individuals or entities attempt to shield assets from potential liabilities by transferring them to others (such as spouses and children), and it highlights the importance of considering the broader intent behind such transfers when assessing their validity. It is important to note that during the oral hearing, the respondents attempted to raise an argument about the statute of limitations. However, since this argument was not presented in the lower court, new arguments can only be introduced on appeal with special permission. The ONCA, in this case, declined to grant permission for the introduction of the new argument. For more information regarding Bankruptcy, Collections, Fraud, and/or Trusts related topics, please contact Hyland Muirhead at Devry Smith Frank LLP at (416) 446-5092 or hyland.muirhead@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by Articling Student, Owais Hashmi. Sources: Ontario Securities Commission v. Camerlengo Holdings Inc., 2023 ONCA 93 By AlyssaBlog, Collections and Mortgage RecoverySeptember 4, 2023September 5, 2023
Views of the Child – Should I Get a Voice of the Child Report? We all know that children suffer the most in family law proceedings. However, giving weight to a child’s preferences in the proceedings can give them a sense of autonomy and control of the situation. As a result, the provincial Children’s Law Reform Act and the federal Divorce Act both emphasize that courts must consider the views and preferences of the child when it comes to determining their best interests, in accordance with the child’s age and maturity.[1] This is not an easy task; the Ontario Court of Appeal acknowledged that: It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.[2] The courts have approached this challenge in various ways. This article will discuss one such method: Voice of the Child Reports. What is a Voice of the Child Report? A Voice of the Child Report (VOC) is a short report written by an expert clinician or lawyer for the court which summarizes a child’s views, preferences, and statements on a particular issue in a determination of decision-making responsibility or parenting time. This report is often only completed for children over the age of seven, as it can be difficult for children under that age to meaningfully communicate their views. A VOC does not include: formal interviews of the parents; observation visits of the child and parents; gathering of information from third parties, such as teachers and family doctors; disclosure meetings; or recommendations Courts have generally been receptive of this new measure. VOCs are considered to be “an effective and efficient process for ensuring the right of the child to participate in proceedings that affect them and for fulfilling the court’s mandate to consider their views and preferences.”[3] Aside from testifying in court or speaking directly to a judge in private, which can be intimidating and traumatizing for a child, VOCs are one of the few methods which allow courts to receive direct information on the child’s preferences.[4] A clinician of the Office of the Children’s Lawyer (OCL) may also complete a more detailed Children’s Lawyer Report, or a s. 112 assessment.[5] In this report, the clinician is required to meet with the parents and child; observe the child with the parent; contact other adults in the child’s life, like teachers, doctors, day care workers, and therapists; and write a report with details of their investigation and recommendations. This report is more time-consuming and expensive than a VOC and takes approximately 90 to 120 days to complete, compared to 30 days for a VOC. How do I Obtain a VOC? To obtain a VOC from the OCL, you must complete the following steps: Request from the Court You must first obtain a court order requesting that the OCL intervene and provide a VOC. The court will define the issues to be addressed in the report via a Voice of the Child Endorsement Form. Complete Intake Form Upon receiving the order, the parties must complete a Voice of the Child Intake Form and send it to the OCL within one business day of the order. The intake form can be emailed to OCL.LegalDocuments@ontario.ca or faxed to 416-314-8050. If the parties complete the intake form immediately after the order is made before leaving the courthouse, then the court staff can send the court order and completed intake form to the OCL together. Acceptance of Case by OCL When the OCL receives the court order and intake form, they must decide whether to accept or refuse the case. The OCL will notify the parties and the referring judge of their decision in writing. If accepted, an OCL clinician will be assigned to the case. If the OCL refuses the case, then you can still obtain a VOC by retaining your own expert or children’s lawyer and paying for the report yourself. Contact from Clinician After receiving the assignment, the clinician will contact the parties involved to introduce themselves, describe the VOC process, request a copy of all relevant court documents and endorsements, gather information about the referral, and arrange a time and place to interview the child. Interviews with Child The child will attend two interviews with the clinician on two separate days. At the end of each interview, the clinician will review the child’s statements with them to ensure that they accurately reflect their views. Notification of Final Report The clinician will inform the parties when the interviews have been completed. The VOC will be filed with the court and sent to the parties within 30 days of the clinician’s initial involvement with the case. After the report is completed, OCL’s involvement with the case will end. Who Can Write a VOC? If the OCL agreed to be involved in your case, then the VOC will be written by an OCL expert. The OCL expert can be a clinician or a children’s lawyer with expertise in the areas of child development and children in families with conflict. You can also hire a non-OCL clinician to write a VOC for you. Here, it is important that the writer is a neutral and non-biased third party. Courts have rejected the parties’ choices to write a VOC when they had a pre-existing relationship with the child, a professional relationship with one of the parties, or had already rendered opinions or recommendations in the proceedings.[6] Furthermore, a non-clinician should ideally be a children’s lawyer sitting on the personal rights panel for the OCL. In Stefanska v Chyzynski,[7] after the OCL declined involvement due to lack of resources, the mother retained a lawyer to write the report. This lawyer only practiced family law in a limited capacity, was not an expert in child psychology, and had never prepared a VOC before. Her expertise was limited to a three-hour consultation from a child and family therapist who had prepared VOCs before. Justice Horkins emphasized that it was preferable that the VOC was prepared by a trained professional. However, as the report is only a “vehicle to present the views of the children to the Court without any evaluation”, he reluctantly admitted the report.[8] Despite this ruling, if you want your VOC to carry more weight, it is best to do your research and retain a professional with experience in preparing VOCs. When Should I get a VOC for My Child? A VOC may be appropriate in the following circumstances: When your child is an appropriate age. VOCs are generally not available for children under the age of seven, although this cut-off is not strictly enforced and is highly dependent on the individual child’s maturity.[9] A VOC can be created so long as the child is capable of conveying their preferences in a meaningful way. VOCs also may not be as useful for older teenagers, as courts are often reluctant to make parenting time decisions for children close to the age of majority.[10] When you and your former partner disagree about your child’s preferences. VOCs allow parents to get a better understanding of their child’s views and preferences. This can help resolve issues surrounding parenting time and decision-making responsibility earlier in the litigation process, which saves time, costs, and stress for everyone involved. When your child wants to express their views. A VOC will be much more impactful if your child is interested in communicating their views and preferences to the writer. As noted above, this experience may give your child a sense of control and autonomy in the situation without feeling like they’re taking a parent’s side. While VOCs may be less useful in cases where there are issues of parental alienation[11] or allegations of abuse or neglect, for the vast majority of parenting and decision-making disputes, a VOC is an excellent way for your child to feel heard and acknowledged in the court process. If you have questions about obtaining a VOC or another other family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca. This blog was co-authored by law student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] For example, see Children’s Law Reform Act, RSO 1990, c C12, ss 24(3)(e) and 64(1) and Divorce Act, s 16(3)(e). [2] Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para 65. [3] Byers v Byers, 2023 ONSC 297 at para 21 [Byers]. [4] Ibid at para 22. [5] This assessment is provided for in the Courts of Justice Act, RSO 1990, c C43, s 112(1). [6] See Svirsky v Svirsky, 2013 ONSC 5564 at para 27 and Religa v Nesrallah, 2017 ONSC 1491 at paras 16-18. [7] Stefanska v Chyzynski, 2020 ONSC 3048. [8] Ibid at para 93. [9] See Byers, supra note 3 at para 25, where Justice Tellier ordered a VOC for a six-year old child. [10] In Medjuck v Medjuck, 2019 ONSC 3254 at paras 28-29, Justice Kristjanson refused to order a VOC for a seventeen-year old who chose to reside with his father and have no contact with his mother. [11] For instance, see ibid at paras 31-32 and Canepa v Canepa, 2018 ONSC 5154 at para 23. By AlyssaBlog, Family LawAugust 28, 2023August 24, 2023
DSF is Recognized in Best Lawyers 2024 Edition Devry Smith Frank LLP (DSF) is proud to announce that we have been recognized by Best Lawyers in Canada for the 2024 Edition with 7 of our lawyers ranked across various practice areas. The lawyers being recognized are listed below: David Lavkulik – Personal Injury Litigation Diana L. Solomon – Family Law George O. Frank – Personal Injury Litigation Jennifer K. Howard – Family Law Marc G. Spivak – Personal Injury Litigation Marty Rabinovitch – Labour and Employment Law – Recognized for the first time in 2024 edition of Best Lawyers Todd E. Slonim – Family Law We are grateful for this recognition and will continue to strive to provide the best service for our clients. Best Lawyers is the legal profession’s oldest peer-review publication and garners immense respect as the recognition signifies peer approval. Lists of outstanding lawyers arise from thorough evaluations where legal experts confidentially evaluate their colleagues. For over 40 years, this top peer-review publication acknowledges leading attorneys across more than 100 practice areas, chosen for outstanding feedback. “Lawyer of the Year” is awarded to one attorney in each practice area and metropolitan area, further amplifying its significance. Please visit their website for more details: www.bestlawyers.com By AlyssaBlog, Employment Law, Family Law, Labour Law, Personal Injury, UncategorizedAugust 25, 2023August 25, 2023
Global Talent Stream: How to Fill High-Skilled Positions at Canadian Companies with Temporary Foreign Workers The Global Talent Stream (“GTS”) operates under the Temporary Foreign Worker Program (“TFWP”) as an efficient way for innovative Canadian firms to acquire the top foreign talent to fill a particular role when there is a shortage of domestic workers in that area. All those hiring through the GTS, must get a Labour Market Impact Assessment (“LMIA”). An LMIA will confirm whether there is truly a need for a temporary foreign worker (“TFW”) due to the absence of Canadians or permanent residents who can fill the position that an employer is hiring for. Before applying to hire through the GTS, make sure that you need an LMIA. Companies looking to transfer highly skilled or managerial employees to its affiliate in Canada can avoid the LMIA process. Program Eligibility If you need an LMIA, then you can hire through the GTS. There are two categories to which employers can apply for the GTS: Category A and Category B. Category A To be eligible for Category A, an employer must meet two criteria: A designated partner of the GTS has referred them to the program; and The employer is hiring an individual to fill a unique and specialized position whose talent will help the employer “scale-up and grow”.[i] WHAT DOES “UNIQUE AND SPECIALIZED” MEAN? There are several markers of a unique and specialized position: Compensation for a unique and specialized position will be the higher of an annual base salary of at least $80,000.00 ($38.46/hour), or the prevailing wage; Advanced knowledge of a particular industry; and An advanced degree in one of the employer’s areas of specialization, and/or at least five years of experience in this specialized field. Essentially, an individual with unique and specialized talent would earn a higher-than-average wage and be extremely knowledgeable of the innovative field, either because of their education or job experience. Category B Category B, on the other hand, does not require referrals. An employer applying under this category will instead be looking to hire a highly skilled TFW to fill a position in one of the high-demand occupations mentioned on the Global Talent Occupations List. How to Apply for an LMIA Other than in Quebec, British Columbia, and Manitoba – for which certain parts of the GTS application are unique to those provinces – the process of hiring through the GTS is the same across Canada. If you are an eligible employer – either under Category A or Category B – and you need an LMIA, these are the steps to follow to get permission from Employment Development Services Canada (“EDSC”) to hire a TFW for your open position: Pay your processing fees; Complete your Labour Market Benefits Plan (LMBP) The company must commit to at least one mandatory benefit and two complementary benefits in its LMBP; The LMBP will be negotiated with a program officer; Upon LMBP approval, the GTS LMIA can proceed. Review and ensure your position abides by the GTS requirements for Wages; Business legitimacy; Duties and conditions; Health insurance; Workplace safety; Language; Employment agreements; and, if applicable Unionized positions. Gather your supporting documents and apply for an LMIA through the portal. Note that if you have not employed a TFW within the previous six years of your impending LMIA application, the EDSC considers you to be a new employer, which requires additional steps.[ii] The Results of an LMIA An LMIA will yield one of two results: positive or negative. A positive LMIA means that EDSC has determined that hiring a TFW in this circumstance will either have a positive or neutral impact on the Canadian labour market.[iii] A negative LMIA means the opposite and will be based on a number of aggravating factors.[iv] Only those employers who receive a positive result may hire talent through the GTS. Conclusion The information contained in this blog does not constitute legal advice. Please speak to an immigration lawyer if you have any questions/concerns relating to this blog or if you need help with an immigration law matter. [i] Program requirements for the Global Talent Stream: https://www.canada.ca/en/employment-social-development/services/foreign-workers/global-talent/requirements.html#h19 [ii] New employers: https://www.canada.ca/en/employment-social-development/services/foreign-workers/global-talent/requirements.html#h6:~:text=on%20your%20behalf.-,New%20employers,-Employers%20who%20haven%E2%80%99t [iii] Temporary Foreign Worker Program (TFWP): Positive Labour Market Impact Assessment (LMIA) Employers List: https://open.canada.ca/data/en/dataset/90fed587-1364-4f33-a9ee-208181dc0b97 [iv] Temporary Foreign Worker Program (TFWP): Negative Labour Market Impact Assessment (LMIA) Employers List: https://open.canada.ca/data/en/dataset/f82f66f2-a22b-4511-bccf-e1d74db39ae5 By AlyssaBlog, ImmigrationAugust 14, 2023August 9, 2023