How Can I Obtain Custody of the Family Pet in My Divorce? – My Soon to be ex-husband is Keeping My Pet Away From Me Under Ontario’s current Family Law Legislation, pets, of any sort, are not treated like children they are, for all purposes of law “property”, like furniture, cars or bank accounts. So, judges do not decide things on the basis of the “best interests of the pet”, the way judges decide parenting issues on the basis of the best interest of the child. Since the “best interests” do not factor into the decision about who gets the pet, the issue about who gets to have the pet is determined by who owns the pet or who can prove to have “title” to the pet. To answer whether you can get your pet back, you have to understand how property division works in separation and divorce. It is important to note that being married in Ontario does not give spouses an automatic right to ownership of each other’s possessions. That said, the pet in question, belongs to whomever paid for it. However, if there happens to be pedigree papers, the owner listed on that document or other paperwork that proves ownership is believed to be the legal owner. Ownership remains the same, regardless of whether spouses are married or divorced. Under Part I of the Family Law Act, married spouses share in the value of each other’s property but do not own each other’s possessions in any way – unless they bought something in joint names. Nonetheless, if you own the pet, your spouse does not and your spouse will not turn the pet over, you may have to start court proceedings. Rule 44 of the Rules of Civil Procedure give the Court the power to order the Sheriff’s office go to wherever your ex is residing and recover items that you have proven to the court belong to you. The procedure is quite complex and you will most definitely need a lawyer to assist both with getting the Order and with arranging the necessary security for damages that the Court Rule requires. If you and your spouse own the pet jointly, then the situation becomes much more complex. You must put forth a Family Court Application under section 10 of the Family Law Act for a determination that you are the rightful sole owner of the pet based on the “principals of Equity” rather than title (because you have contributed more to the value of the pet than your spouse). Alternatively, you can claim, under that section, that you should be the owner who has possession of the pet because you will “preserve the asset” better. However, where there is joint ownership, and one owner does not want to buy out the other, Judges do not try to determine the value of assets, or force one party to buy out the others’ interest. The judge is likely to order that the pet be sold on the open market and the proceeds of sale divided between the owners (again Ontario Law treats pets and “property” and not as children). The judge may order that either party can put in offers/bids to buy the pet, with it being sold at the highest price. Alternatively, the judge may order that neither party can try to buy the pet if that would be best for all concerned. If you and your ex can agree to it, you could go to Family Arbitration and instruct your arbitrator to decide the issue of where the pet should live based on the pets best interest. However, section 2.2(1) of the Arbitration Act, 1991 technically requires that assets acquired during a marriage, be divided according to the Family Law Act and not the parties’ instructions. Therefore, your best options might be to try to work something out through negotiation, mediation or collaborative practice, where the needs of the pet can come first. For assistance with the division of assets during a divorce or separation contact experienced and certified specialist in family law, John P. Schuman of Devry Smith Frank LLP. He is the partner managing the Family Law Group at DSF, a full-service law firm located near Eglinton and the Don Valley Parkway in Toronto. Contact him directly at 416-446-5080 or email john.schuman@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 situation and needs.” By Fauzan SiddiquiBlog, Family LawMarch 27, 2019June 16, 2020
Changes to Impaired Driving Laws In 2018, Bill C- 46 was passed and with it came significant changes to impaired driving laws in Canada. Bill C-46 repealed sections 249 to 261 of the Criminal Code and replaced it with Part VIII.1 – sections 320.11 to 320.4 The changes include three new offences referring to a blood drug concentration (BDC) over the legal limit. In addition changes were made to the offences of operating while impaired, operating while “over 80” and refusal to comply with a breath demand. Elements of all other transportation offences appear to be similar to their previous versions although there have been some language changes. The new provisions have also introduced some new and higher mandatory minimum fines and some higher maximum penalties for impaired driving offences. The new Part VIII.1 of the Criminal Code contains 10 basic transportation offences (those relating to impaired driving are highlighted): Dangerous operation of a conveyance (section 320.13); Operating a conveyance while impaired (paragraph 320.14(1)(a)); Having a blood alcohol concentration (BAC) of 80 mg of alcohol in 100 ml of blood or more within two hours of operating a conveyance (paragraph 320.14(1)(b)); Having a blood drug concentration (BDC) over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14(1)(c)); Having a combined BAC and BDC over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14 (1)(d)); Having a BDC over a prescribed limit that is lower than the BDC set under paragraph 320.14(1)(c) within two hours of operating a conveyance (subsection 320.14(4)); Refusing to comply with a demand (section 320.15); Failure to stop after an accident (section 320.16); Flight from peace officer (section 320.17); and Driving a conveyance while prohibited (section 320.18). Impaired Operation – s. 320.14(1)(a) While the wording of the offence has changed a bit, this sections remains the same as the previous law. It is an offence to operate a conveyance (vehicle) if a person’s ability is impaired by alcohol or a drug or a combination of alcohol and a drug “to any degree”. Operating with a BAC equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours of driving – s. 320.14 (1) (b) The terms “equal to or exceeding” is a new term that the government has included in response to concerns regarding the practice of truncating blood alcohol concentration (BAC) results (i.e., rounding the test results down to the nearest multiple of 10). The new formulation of the offence “operating at or over 80 within two hours of driving” changes the timeframe within which the offence can be committed and is an attempt by the government to eliminate the bolus drinking defence and the intervening drink defence. The bolus drinking defence arose when a driver claimed to have consumed alcohol just before driving and/or while driving. Although they admitted that their BAC was “over 80” at the time of testing, they would claim that the alcohol was still being absorbed and, at the time of driving, they were not “over 80”. The intervening drink defence would arise when a driver consumed alcohol after driving but before they provided a breath sample. This defence often came up when there had been a motor vehicle collision and the driver claimed that they were settling their nerves post accident. The only situation in which a driver can now rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5) (or subsections (6) & (7) for drug consumption). The offence is not made out if all of the following conditions are met: The person consumed alcohol after ceasing to operate the conveyance; The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and, Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation. Penalties The proposed penalties and prohibitions for impaired driving and over 80 offences have also been changed. The mandatory minimum fines have gone up. A first conviction for impaired driving or having a blood alcohol concentration (BAC) of 80 to 119 is $1,000, which was the previous mandatory minimum for a first offence. However, there are now higher mandatory fines for first offenders with high BAC levels: $1,500 for a BAC of 120 to 159, and $2,000 for a BAC of 160 or more. The mandatory minimum fine for a first refusal to comply with a breath demand conviction has also been increased to $2,000. The current mandatory minimum penalties for repeat offenders remain the same as before: 30 days imprisonment for a second offence and 120 days imprisonment for a third or subsequent offence. The maximum penalty for all the transportation offences has been increased from 18 months to two years less a day on summary conviction, and from 5 years to 10 years on indictment. Operating a Conveyance with a BDC equal to or exceeding the legal limit within two hours of operating a conveyance – sections 320.14(1)(c), (d) and 320.14(4) There are three new criminal offences related to drug-impaired driving or when a motorist is impaired by drugs or a combination of drugs and alcohol. Section 320.14(1)(c) makes it an offence to have a BDC equal to or over the prescribed limit within two hours of operating a conveyance. Section 320.14(1)(d) makes it an offence to have a combined BAC and BDC equal to or over the prescribed limit within two hours of operating a conveyance. Section 320.14(4) makes it a less serious offence to operate a conveyance with a lower level of drug impairment than prescribed by s. 320.14(1)(c), but that is equal to or over an amount prescribed by regulation. Penalties The penalties for driving with a BDC over the legal limits depend on the drug type and the levels of drug or the combination of alcohol and drugs. The levels are set by regulation. With some drugs – including LSD, ketamine, PCP and cocaine – it is an offence to have any detectable amount of the substance in your system within two hours of driving. For cannabis and THC (the main psychoactive compound in cannabis), the legal limits and the respective penalties are the following: Under s. 320.14(1)(c), having 5 nanograms (ng) or more of THC per ml of blood within two hours of driving would be a hybrid offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases. Under s. 320.14(1)(d), having a blood alcohol concentration (BAC) of 50 milligrams of alcohol per 100 ml of blood (or more), combined with a THC level of 2.5 ng per ml of blood or higher within two hours of driving is a hybrid offence. The hybrid offences under s. 320.14(1)(c) and (d) would be punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders (as with alcohol impairment and over 80 offences – 30 days imprisonment on a second offence and 120 days on a third or subsequent offence). The maximum penalties are imprisonment for two years less a day on summary conviction (up from 18 months), and to 10 years on indictment (up from 5 years). Under s. 320.14(4), having at least 2 nanograms (ng) of THC but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving would be a less serious summary conviction criminal offence, punishable by a fine of up to $1,000. In addition to the mandatory minimum fines and imprisonment penalties, impaired and over the legal limit offences (for both alcohol and drugs) also continue to carry with them mandatory driving prohibition orders. These penalties are now contained in section 320.24 of the Criminal Code. Charter and other Concerns Numerous aspects of the new impaired driving regime will face scrutiny under the Canadian Charter of Rights and Freedoms. It is anticipated that cases involving these offences will be challenged in the courts and the constitutionality of the new provisions will eventually be decided by the Supreme Court of Canada. Here are several aspects of the new laws that will likely be debated in the courts: Mandatory Alcohol Screening – s.320.27(2) Under the previous law, the police had to have a reasonable suspicion of alcohol in the body to be able to demand a roadside alcohol screening. A significant change with the new law is the introduction of mandatory alcohol screening under s.320.27(2). With this new section, a police officer who has lawfully stopped a driver is able to demand that the driver provide a breath sample into an Approved Screening Device (ASD) without needing to have a reasonable suspicion that the driver has alcohol in the body. This provision has drawn significant criticism from the criminal defence bar and civil liberty advocates. Critics of the provision argue that it amounts to an arbitrary use of police power. Taking away the “reasonable suspicion” previously required by the police will be challenged as a violation of one’s Charter rights, notably their right to be free from unreasonable search and seizure. The New Language “Within Two Hours of Operating a Conveyance” This new provision making it an offence to have a certain BAC and or BDC within two hours of driving has also drawn heavy criticism. It goes without saying that criminalizing drinking after one has been driving will be vigorously challenged in the courts. In attempting to take away previously used defences (such as bolus drinking and the intervening drink defence), the federal government is now potentially criminalizing individuals who have not been drinking and driving. At the very least, the new section appears to put an onus on the public under sections 320.14 (5), (6) and (7) to show several things, including that they started drinking and/or consuming drugs after they drove and that they had no reasonable expectation they would be required to provide a breath sample. Do the new offences of “BDC over a prescribed limit” actually catch those who are impaired as it relates to cannabis? The new prescribed limits for cannabis/THC are controversial. Critics have argued that there is not a clear link between the level of THC in the blood and the degree of impairment, as there is with alcohol. Competing scientific evidence and argument over whether the present prescribed levels of THC blood concentration actually establish “impairment” are likely. If you or someone you know has been charged with impaired driving, or any criminal offence, please contact criminal defence lawyer David Schell at 416-446-5096 or david.schell@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 situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMarch 19, 2019July 5, 2023
I Want to move Provinces However, I am Aware That I’d Need the Permission of My Child’s Father to Do So. But, can My Child’s Father Move Without My Permission? If you, as a primary parent, want to move, you would need your ex’s permission because naturally, moving will interfere with him parenting your son. However, if he moves, then he will be interfering with his own time with your son, and, presumably, that will not affect your time with the child(ren). However, if he is moving away anyway, then it will be hard for him to deny you permission to move because your moving will not affect him or his time with your son, If you were emigrating to another country, then he might have a reason to oppose. However, chances are if he is moving considerably further away from that he may not be able to continue to see your son on weekends, then there is no reason to oppose you moving. Deciding whether to permit one parent to relocate with the child(ren) is one of the most difficult dilemmas judges face and they consider a lot of factors in deciding whether to allow a parent to move away with the child/ren. The most important of these factors and perhaps the only one the judge will care about when drawing upon a decision is what is in the best interest of the child. If your ex-partner refuses to give you permission to move, then you should explore the option of beginning family court proceedings without delay. Without your ex-partner’s consent, you cannot relocate with your child/ren and a judge could order you to return with the child/ren. – There are consequences for preventing access to the other parent and it would be, in most cases, impossible for a lawyer to predict, with certainty, how a judge will decide a “mobility case” – each case depends on its own specific facts. Having said that, your ex-partner may even have to pay some or all of your legal fees, if his reason for opposing your move is deemed unreasonable. Furthermore, a parent having to spend an excessive amount to exercise access is one of the few bases on which a judge can reduce child support below the Table Amount in the Child Support Guidelines. That may not impact your decision to relocate after all, but it is something to consider. It is certainly more problematic for a parent to ask for a reduction of child support because of travel costs if the parent freely relocated and chose to incur those costs. For more information regarding divorce, property division, marriage contracts or any other family law-related topic, contact Toronto family lawyer John Schuman at 416-446-5080 or John.Schuman@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 situation and needs.” By Fauzan SiddiquiBlog, Family LawMarch 13, 2019July 5, 2023
What Does The Court Decision On the Repeal Of The Sexual Education Curriculum Mean? On February 28, 2019, the Ontario Divisional Court released its decision on the constitutional challenge to the provinces repeal of the 2015 Sexual Education Curriculum brought by the English Public Teachers Union and the Canadian Civil Liberties Association and others. While the Court dismissed the challenge, the decision does not prohibit teachers from teaching the 2015 Sexual Education Curriculum. To the contrary, to some extent, it requires teachers to teach at least some aspects of the 2015 curriculum or lessons that are very similar to it Teachers at publicly funded schools will want to consult with their Board and their union about their rights and obligations. The decision does not apply to private school teachers as they do not have to follow the Ontario Curriculum at all. This page will provide a general overview and explanation of the Divisional Court’s decision about what sexual education curriculum is in place in public schools. The challenge to the Ontario Government’s repeal of the 2015 Sexual Education Curriculum, resulting in the return to the curriculum as it existed in 2010, can be summarized as follows: The repeal of the curriculum violated teacher’s freedom of expression because the government has threatened to punish teachers who taught the 2015 curriculum. A prohibition on teaching topics such as “consent” and alternative lifestyles threatened the lives and the security of the persons of students, particularly students who could be harmed by a lack of understanding of the meaning of consent amongst students and a lack of information about alternative lifestyles that could result in harm to student who either have a LGBTQ+ lifestyles or are from families that do. A prohibition on teaching alternative lifestyles and focusing on heterosexual relationships offends the equality rights guaranteed in the Canadian Charter of Rights and Freedoms. The repeal of the curriculum particularly threatens the security of the person and equality rights indigenous persons. As a result of the residential schools system and the “Sixties Scoop”, it is more important for indigenous children to learn about consent, bodily integrity and sexual assault at a young age to address the significantly higher rates of sexual violence faced by indigenous children. The repeal of the sexual education curriculum unreasonably discriminated on elementary students on the basis of age and deprived them of information that is important to their wellbeing due to their age without a sound basis for doing so. The Court did not find any violations the Canadian Charter of Rights and Freedoms, nor of the Ontario Human Rights Code. But it recognized the validity of the above concerns. However, it said that the Ontario Government was not preventing teachers from covering the “new” topics in their classrooms. Moreover, the Ontario Human Rights Code may actually require teachers to cover these topics to avoid discrimination against disadvantaged groups who could be harmed by a lack of information on these topics. Importantly, despite some initial “ill-considered pubic statements”, the Ministry of Education is not prohibiting teachers from teaching topics in the 2015 Sexual Education Curriculum. The 2010 Sexual Education Curriculum does not prohibit teachers from covering the additional topics in the 2015 curriculum. Further, there will be no repercussions for teachers who do teach the new topics. To the contrary, teachers may be required to teach topics found in the 2015 curriculum. Despite the repeal of the 2015 sexual education curriculum, the law may require teachers to teach elementary students about consent, body parts, LGTBQ+ lifestyles, the risks of technology, sexual violence and sexually transmitted infections. This is because: Nothing in the 2010 Curriculum prohibits teachers from covering these topics. The Ministry’s Policy and Procedure Memorandum (a directive from the Ministry of Education to publicly funded school boards) number 119 requires boards to have an equity and inclusive education policy that is comprehensive and covers the grounds of discrimination in the Ontario Human Rights Code. PPMs 128. 144, and 145 require school to ensure a “safe positive and inclusive school climate”. The 2010 Curriculum requires that sexual education be provided in an accepting and inclusive manner that reflects the diversity of the student population and ensures that all students feels safe, comfortable and accepted. The Ministry of Education’s position is that how teacher’s meet the above expectations is a matter of the teacher’s professional judgment and discretion. The 2010 Curriculum allows teachers to “amplify” instruction to include current examples. Section 169.1 of the Education Act and the section 1 of the Ontario Human Rights Code require teachers and school environments to be inclusive, tolerant and respect diversity. The Ontario Human Rights Code requires to protect gender identity and gender diversity. The Court did hold that a government, as part of its policy decisions, is permitted to modify the Provincial Curriculum and the Canadian Charter of Rights and Freedoms does not require a particular curriculum. Since the concerns raised by the challenges have otherwise been addressed by Ontario Law to ensure that students are protected from harm, there is no basis to set aside the Government’s decision to repeal the sexual education curriculum. The results of the analysis of large-scale studies of the efficacy and safety of Viagra (Sildenafil) in patients with erectile dysfunction (ED), simultaneously taking antihypertensive drugs (AHDs) have been published. According to the data received, the use of one or more AHDs (diuretics, b-adrenoceptor blockers, ACE inhibitors or calcium channel blockers) doesn’t affect the efficiency and safety of Viagra. Despite all the rhetoric from the Provincial Government about repealing the 2015 sexual education curriculum, Ontario Law and Ontario Ministry of Education Policy, actually require teachers to continue to cover the “new topics” in the 2015 curriculum. The curriculum just does not provide as much guidance on how to cover those topics, so teachers may actually have to refer to the 2015 curriculum, which teachers are permitted to do. The repeal of the 2015 sexual education curriculum was not unconstitutional because Ontario Law still requires teachers to cover the “repealed topics” with elementary school students. The Ministry of Education is just not explicitly telling them how to do so. For more information on legislation pertaining to education in Ontario, contact experienced family and education lawyer, John P. Schuman of Devry Smith Frank LLP directly at: john.schuman@devrylaw.ca, or alternatively, 416-446-5869. “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.” By Fauzan SiddiquiBlog, Education LawMarch 6, 2019June 14, 2020
I Owned the Home Before We Married – Why Does My Spouse Get a Share of It? We are all familiar with the skyrocketing price of homes in Toronto and the surrounding area. It is not a simple feat to purchase a home – it requires a lot of hard work and obviously, money. Picture this: you work your way through school, spend years in full-time employment, finally earn enough income to secure a home, make mortgage payments on your own for several years, meet your partner, marry said partner, separate from said partner, and then you lose a large portion of equity in your home to that partner. For many, this is an unfortunate reality and the reason why is something our clients should be aware of, given that the family home is most often a couples’ most significant asset. In Ontario, there are special rules in respect of the treatment of the matrimonial home upon marriage dissolution. The Family Law Act defines a “matrimonial home” as follows: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.” It is important to note that a couple can have more than one matrimonial home. A cottage for example, ordinarily occupied by both spouses, can be a matrimonial home. A hunting cabin only ever used by one spouse on the other hand would not be considered a matrimonial home. Under the law in Ontario, a couple’s property is not divided upon separation, but rather, the value of that property and more specifically, the growth in value of property that spouses share is divided. What this means is that if the title to the matrimonial home is in your name (perhaps you owed it before the marriage), it stays in your name (subject to some claims your spouse could make if he or she made significant contributions to the property), but your spouse has a right to claim a share in the value of a matrimonial home as part of an equalization payment dividing property. Absent a marriage contract, the entire equity in a matrimonial home is always included in the value of assets that married spouses share. With almost every other type of asset, spouses only share in the growth in value during the marriage. Take for example an art collection – purchased by both spouses – this is something you and your partner would share the wealth in. The matrimonial home on the other hand is not. Section 5(2) of the Family Law Act does not allow a spouse to get any credit for bringing a property into the marriage if that property was a matrimonial home on the date of separation. So, without a marriage contract, a couple will share whatever value is in the matrimonial home. Unless the matrimonial home is jointly owned, there is no right to “half” the home but instead, a right to have whatever equity lies within the home included in property/asset division. In terms of possession of the home, both spouses have an equal right to possession pursuant to section 19 of the Family Law Act. What this means is that one spouse cannot unilaterally exclude the other from the matrimonial home, even if they own it. A spouse (whether on title or not) can also apply to the court for exclusive possession of the matrimonial home (s. 24 of the Family Law Act). A court order for exclusive possession has the effect of excluding a spouse from the property for a period of time as determined by the court. If you are planning on getting married and own a home, you may want to consider putting protections in place and these protections would come in the form of a marriage contract. A marriage contract – entered into in anticipation or marriage or after a marriage has already happened – can exclude the matrimonial home from a spouses net family property. This would have the effect of the spouses not sharing in the equity in the home on date of separation. If the marriage contract is done properly, which requires the help of a lawyer, then judges usually think that giving a spouse credit for bringing the home into the marriage is fair. For more information regarding divorce, property division, marriage contracts or any other family law related topic, contact Toronto family lawyer John Schuman at 416-446-5080 or John.Schuman@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 situation and needs.” By Fauzan SiddiquiBlog, Family LawMarch 5, 2019July 5, 2023
Is it Illegal For A Teacher To Secretly Film Their Students’ Cleavage? Most, if not all, of us can likely agree that it is wrong to film someone without their consent. We can also probably agree that it is even more wrong when the filming is sexual in nature. Take for example someone filming you inside your condo while changing and/or focusing their camera in on your private parts. Those same people are probably also in agreement that when it is a teacher filming one of his/her students at school, it is even more wrong. So hypothetically speaking, if a teacher were to film his students and more specifically, his female students’ chests, without their knowledge, this would be very wrong and that teacher should be sanctioned. Seems pretty cut and dry, right? Wrong. In late 2010, Ryan Jarvis, a then high school teacher in London, Ontario, was caught secretly filming the chests of his female students with a camera pen. Jarvis filmed over 25 of his female students, all of whom were between the ages of 14 and 18 and all of whom had no idea they were being filmed. Jarvis was charged with voyeurism under section 167(1) of Canada’s Criminal Code. Section 167(1) reads: 162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (c) the observation or recording is done for a sexual purpose. At trial, Jarvis was acquitted of his charges. According to the trial judge, there was no evidence that Jarvis filmed the students for sexual purposes. On appeal at the Court of Appeal for Ontario, the panel found there to be clear sexual intent but the court upheld the acquittal on the basis of the students having “no reasonable expectation of privacy while at school”. So although it seems absurd that something so inherently wrong went all the way to Canada’s top Court to decide, it did. The Supreme Court of Canada was tasked with determining whether the students recorded by Jarvis were in circumstances that gave rise to a “reasonable expectation of privacy.” Jarvis argued that because the students were at school, where there were several other various surveillance cameras, such a reasonable expectation did not exist. The Supreme Court released their decision yesterday and the court disagreed with Jarvis’ argument and instead advanced a position held by most of the Canadian public: girls (and boys) should be able to go to school without having to worry about whether they are being secretly recorded, especially by someone in a position of trust, such as a teacher. However, although all nine Supreme Court judges agreed that Jarvis was guilty of voyeurism, the Justices were split on the legalities of the case, thereby demonstrating its complexity and the fact that this was not in fact an “open-and-shut case,” despite many Canadians having felt so. Ultimately, the Supreme Court’s decision has set clearer (and more expansive) guidelines around what a reasonable expectation of privacy means when in public spaces in the context of voyeurism. The court considered the example of a drone taking high-resolution photographs of unsuspecting sunbathers at a public swimming pool and noted that this too would raise similar privacy concerns to Jarvis’ case. Not surprisingly, Jarvis’ lawyers feel that the Supreme Court has cast the net of what constitutes a “reasonable expectation of privacy” too wide, but legal scholars, Ontario’s Information and Privacy Commissioner and women’s rights group alike all consider the decision the “right” one in the face of something that was so obviously wrong. The best way to protect yourself and your children is keep abreast of laws pertaining to education in Ontario. Additionally, it is always recommended that you seek help from an highly experienced legal professional such as John Schuman of Devry Smith Frank LLP who can be contacted at: john.schuman@devrylaw.ca, alternatively, 416-446-5869. “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.” By Fauzan SiddiquiBlog, Education LawFebruary 26, 2019June 16, 2020
Can I be Criminalized or given a Custodial Sentence for Possessing or Using ‘Legal’ Cannabis? The answer to the above question is really dependent on how someone obtains their cannabis and what one then does with their legal cannabis. Bill C-45 has now become law and in a previous post we spoke about the use of recreational cannabis and its legalization on October 17, 2018, by the federal government. In response, the Ontario Government did enact legislation which put stipulations in place to keep possession of the drug away from children and youth, keep our roads safe and regulate the sale of cannabis. However, a significant amount of time has now passed and there may still be some confusion over what constitutes criminal or illegal activity where cannabis is concerned. For those who choose to possess and/or enjoy what is now their ‘lawful right’, they should be aware that there are still potential criminal and/or quasi-criminal consequences. As we indicated in our earlier post, operating a motor vehicle while impaired by drug or with a certain level of drug within your system is a criminal offence under the Criminal Code. As we also indicated, under the Ontario Cannabis Control Act, it is an offence to sell cannabis unless you are a licensed retailer. However, for cannabis retailers as well as the general public in Ontario, there are a number of other cannabis offences with quasi-criminal consequences under the Cannabis Control Act. These include the following: Section 7(1) of the Cannabis Control Act prohibits any person from knowingly selling or distributing cannabis to a person under 19 years of age. Section 8 of the Act prohibits any person from knowingly selling or distributing cannabis to a person who appears intoxicated. Section 9 (1) prohibits anyone form buying cannabis from anyone or anywhere other than an authorized cannabis retailer. In other words, it is still illegal to buy cannabis if you do not buy it from a retailer authorized and regulated by the Ontario government. Sections 10 (1) and (2) make it illegal for any person under 19 years of age to possess, consume, attempt to purchase, purchase, distribute, cultivate, propagate, harvest or offer to cultivate, propagate or harvest cannabis. Section 12 of the Act prohibits anyone from driving or having care and control of a vehicle or boat while any cannabis is contained in the vehicle or boat. However this section does not apply if the cannabis is packaged and unopened or is otherwise not readily available to any person in the vehicle or boat. In addition, under s. 12, if the police are reasonably suspicious that cannabis is in your vehicle they can stop and search the vehicle, the driver and its passengers, without a warrant. There are various potential consequences if an individual (or corporation) is convicted of an offence under the Cannabis Control Act. Section 23 outlines that an individual convicted of an offence under the Act is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or both. The fines and potential imprisonment penalties go up if an individual (or corporation) is convicted of the unauthorized sale of cannabis (contrary to section 6) or the sale of cannabis to someone under 19 years of age (section 7). So you see, the regulation within Ontario’s Cannabis Control Act certainly restricts and heavily regulates that which has been recently “legalized”. The view that cannabis drug use is now completely legal is inaccurate when one considers the numerous prohibitions contained within this Ontario legislation. Devry Smith Frank LLP has been and will continue to monitor the provinces efforts to enforce the Cannabis Control Act in Ontario. If you have questions about cannabis laws or need advice understanding how the recent legislation will impact you both professionally and personally, please contact criminal defence lawyer, David Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@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 situation and needs.” By Fauzan SiddiquiBlog, Criminal LawFebruary 22, 2019June 14, 2020
What The Death of Riya Rajkumar Means For Family Law Custody Cases Millions of people were startled late last night to when the emergency tones went off for the Amber Alert for Riya Rajkumar, only to learn, minutes later, that she had been found, but not safe. Riya did not return from an “access visit” with her father for her birthday. Her mother contacted police because she received messages about the father harming Riya. The police found Riya’s body in the middle of the night. They also found her father, who was arrested for murder. The whole event seems disturbingly similar to the murder of Luke Schillings in 1997 and other similar incidents that resulted in changes in Family Court in 2009. Predictably, everyone wants to prevent this kind of event from happening again. Almost immediately, there were calls to cut off “access” to fathers, for presumptions of supervised access, and for family courts to be vigilant and act on any hint of possible abuse, separating all ties between children and parents. Doubtlessly, Children’s Aid Societies will be under tremendous pressure to be more intrusive in the lives of separated families to make sure this does not happen again. Having practiced Family Law for twenty years, these reactions do not seem so much as an overreaction, but a wrong reaction. Fortunately, these cases are extreme. Judges are vigilant about protecting kids. Custody/Access cases entirely revolve around what is in a child’s best interest and there are no such things as “parental rights in Ontario.” Parenting is a responsibility – a responsibility to ensure that your children group up in the best way possible and meet the fullness of their potential. It goes without saying that what happened to Riya was not in her best interest. However, we do not yet know how the system failed her. High Conflict Separations are dangerous for children. Even without the threat of physical violence, high levels of conflict between parents is really harmful for children. Parents who are overcome with anger with their ex spouse frequently act irrationally and do terrible things, including making false allegations of abuse. False allegations that judges then have to sift through and try to determine what is factual and what is a parent’s unreasonable act of anger or mistrust in the midst of conflict. Neither parent has a monopoly on being on the “wrong side” of parenting conflicts. Separating children from their parents each time there is any suspicion of harm is not deemed healthy for the children. Ask any social worker or psychologist and they will tell you that children need to have a relationship with their parents. This is apparent even if the parent is not a is difficult to get along with. Part of a child’s development, is building a stable sense of identity, rejecting what they do not like in other people, including their parents. Only serious safety concerns should prevent a child from having a relationship with a parent. Conflict and fighting can cause serious safety concerns. People involved in Family Court are aware of the need to devote more resources towards mental health, particularly parents and children. If someone feels that it is necessary to self-harm or harm others, then the system is required to provide that support quickly. It also goes without saying that reducing the conflict can reduce the stress and potential for harm to children. Family Mediation, Parenting Coordinators, and Collaborative Practice, are all options for separated parents to avoid the increase in hostility, negative emotions, bitterness and anger that often accompanies Family Court. The professionals in those disciplines are often good at reducing the conflict, while identifying any underlying concerns, directing the parents, and children, to appropriate resources. In addition, just speaking to a good family law lawyer, can give parents the advice they need to focus on what is important and direct their attention away from the anger they may feel towards the spouse. A good counselor/divorce coach can also help parents address their emotions in a positive way. Focusing on being right often makes things worse. But a good lawyer will direct their clients, and their children to places of safety and provide a good impartial assessment of risk. Many police forces also offer risk assessments, as do children’s aid societies. These resources can help parents decide when it might be unsafe to allow a parent see a child. Parents who are worried about their children’s safety do need to take the appropriate legal actions in response. In times of crisis, then many options are off the table, and that is when it may be time for Family Court, or 9-1-1. If you are not sure about your situation, get some professional advice and do not take the risk of allowing your child to be being harmed. The best way to protect yourself, your children, your possessions and anything else important to you, is to find out how the law applies specifically to your situation and what steps you should take. Contact highly experienced family lawyer John Schuman, of Devry Smith Frank LLP today at john.schuman@devrylaw.ca, alternatively, 416-446-5869. You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. “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.” By Fauzan SiddiquiBlog, Family LawFebruary 15, 2019June 14, 2020
Is There Such A Thing As “Spousal Abandonment” in Canada? What happens if your spouse just ups and leaves? Can you press charges? Is there an automatic right to divorce?A reader recently posed these questions. Simply put, the answer is no.In Canada, we have what can be effectively termed “no fault” divorce. This means that a Court does not have to find one spouse or the other is at fault for the breakdown of the marriage. So although it may be “wrong” for your partner to abandon you, it is not “illegal” and it is not a valid ground for divorce.The only ground for a divorce in Canada in the Divorce Act is “marriage breakdown”. The Divorce Act says you can show your marriage has broken down if any one of the following criteria applies to you:You have been living apart for one year or more.Your spouse has been physically or mentally cruel to you.Your spouse has committed adultery.It is most common for a spouse to divorce based on having lived “separate and apart” with no reasonable prospect of reconciliation for at least one year. You do not need to establish that one spouse behaved badly in order to secure a divorce on the basis of a one-year separation.The other two grounds for divorce are much more difficult to rely on: you can seek a divorce on the grounds that your spouse committed adultery, or treated you with such mental or physical cruelty as to render continued cohabitation intolerable. A divorce on either of these grounds is available less than one year after separation. However, unless your spouse is willing to admit to this behaviour – which for obvious reasons, not many people would – you must prove these grounds and it can be very costly to do so.So if your spouse does up and leave you, you have remedies – you could file for divorce or initiate a court application for spousal support, or if you have children, child support – but a charge or declaration of “spousal abandonment” is not one of these remedies.If you are considering a divorce or you and your spouse have been living apart for a significant amount of time, contact John Schuman of Devry Smith Frank LLP today at 416-446-5080. Alternatively, email john.schuman@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 situation and needs.” My ex-spouse’s income has increased substantially since separation. Am I entitled to more spousal support? Read More » Is Base Monthly Child Support Ever Too High? Can High-Income Earners Get A Break From The Child Support Guidelines Tables? Read More » Common Law Relationship? You Do Not Have the Same Rights as Married Spouses in Ontario Read More » By Fauzan SiddiquiBlog, Family LawFebruary 14, 2019September 2, 2022
My ex-spouse’s income has increased substantially since separation. Am I entitled to more spousal support? Read More »
Is Base Monthly Child Support Ever Too High? Can High-Income Earners Get A Break From The Child Support Guidelines Tables? Read More »
What Are the Consequences of Filing a False Police Report In Canada? By now we have all been subjected to the tragic details of television star Jussie Smollett’s alleged attack in Chicago. When the news broke initially, it seemed as though Smollett was a survivor of what appeared to be a hate crime and his colleagues within the entertainment business did not hesitate to express their support and vocalise the need for change. It was and still is a media frenzy. However, as the evidence unfolded, it quickly became apparent that the crime itself could have been fabricated and orchestrated by Smollett himself. Subsequently, the actor now faces charges for filing a false police report and the story has raised an all-important question about the repercussions of such actions. What are the offences someone can be charged with under the Criminal Code of Canada for filing a false police report or lying to the police? The offence under the Criminal Code which would be most applicable is committing public mischief under section 140. That section states: 140 (1) Everyone commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by (a) making a false statement that accuses some other person of having committed an offence; (b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself; (c) reporting that an offence has been committed when it has not been committed; or (d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died. The purpose of the law is to discourage and punish false reporting and of course to prohibit people from falsely accusing others. Making a false statement transpires when the person makes the statement with the intention of misleading justice. One cannot be convicted if it is determined that they genuinely believed the statement to be true at the time it was made. The penalties for committing public mischief are outlined at section 140(2) of the Criminal Code. If the Crown Attorney perceives the case as serious and elects to proceed by indictment, then an accused who is found guilty is potentially liable to imprisonment for a term not exceeding five years. If the Crown decides to proceed summarily (less serious case) and an accused is found guilty then they are liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. The actual punishment imposed for those convicted will vary according to the facts of each case and the circumstances of each offender. In addition to public mischief, there are several other offences under the Criminal Code that a person could find themselves charged with if they file a false police report or lie to the police. These include the following: Perjury under section 131 of the Code if the person, with intent to mislead, knowingly gives a false statement under oath, affirmation, by affidavit, solemn declaration or deposition; Fabricating Evidence under section 137 of the Code if the person, with intent to mislead, fabricates anything (such as a police report) with the intent that it shall be used as evidence in a judicial proceeding; and Obstructing Justice under section 139 (2) of the Code if the person wilfully attempts to obstruct, pervert or defeat the course of justice. These offences involving the misleading of justice and which include lying to the authorities are taken very seriously. This is clear when looking at the potential and maximum penalties under the Code. Perjury and fabricating evidence are indictable offences with potential prison terms of up to 14 years while obstructing justice under 139 (2) of the Criminal Code is an indictable offence with a maximum sentence of imprisonment for 10 years. If you have been charged with a criminal offence, or have questions pertaining to a similar situation, contact criminal defence lawyer David Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@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 situation and needs.” By Fauzan SiddiquiBlog, Criminal LawFebruary 11, 2019May 20, 2023