My Employer Forced Me to Resign – Was I Fired? By Ivan Merrow Getting fired is never pleasant, but sometimes it happens in unexpected ways. There is a big difference between resigning from your employment voluntarily and resigning after being pressured to do so. A voluntary resignation generally provides no legal remedy against your employer: you chose to end your employment contract, did not suffer damages, and should not be compensated. However, if you feel that your employer forced you to resign to your detriment, you may be entitled to compensation. Was my resignation voluntary? To voluntarily resign in the eyes of the law, you have to demonstrate a clear and unequivocal desire to end your employment. This desire can be expressed in writing, orally, or through your conduct. For example, if you make it very clear that you cannot possibly work for your employer if X happens, and then X happens, you have voluntarily resigned. If you are healthy but stop coming into work and express no intention to return, you have likely voluntarily resigned. Your voluntary resignation can be challenged on the basis that it was not accepted, was withdrawn before your employer acted on it, or was insincere. However, for the purposes of this article, let’s focus on situations where your resignation was not voluntary. You feel your employer forced you to resign and you want a legal remedy. What counts as being “forced” to resign? The legal term for being forced to accept or terminate an agreement is called being under “duress.” Duress can be difficult to prove—the law is reluctant to let people back out of voluntary agreements by arguing they were forced to do so. To show that your employer forced you to resign, you have to demonstrate that the pressure was illegitimate and applied to such an extent that you felt you were given no choice. Important factors include whether you protested the resignation, whether you received legal advice and still resigned, whether you took steps to avoid resigning, and whether your employer provided you with an alternative. Even so, not all alternatives will convince a court that your resignation was voluntary. Does it matter if my employer gave me a choice? Whether you resigned by letter, conversation, or conduct, what happened before you resigned matters. Did your employer give you a choice? Resigning after being given a choice between resigning and getting fired is not considered voluntary. However, it does matter whether you benefitted from the choice. If your employer offers you significant benefits for a resignation, and you accept the deal for personal gain, then your resignation is more likely to be considered voluntary. Does the timing matter? If you felt forced to resign because you experienced harassment, demotion, threats, or unpleasant behaviour from your employer, then the resignation was more likely involuntary. However, if the unpleasant events you blame on your resignation happened years before you resigned, it is less likely you can successfully argue you were fired. The details are important, and play a large role in determining whether you resigned voluntarily or under duress. Key message Resigning from your job does not necessarily mean that it was voluntary. If you feel you were forced to give up your job, you may have a legal remedy against your former employer. However, every situation is different, and the examples in this article may not apply to your case. Your best course is to consult a lawyer about your rights and the remedies available to you. If you have questions about this article or about your resignation, contact the employment lawyers at Devry Smith Frank LLP at 416-446-1400. By Fauzan SiddiquiUncategorizedJanuary 29, 2016December 1, 2020
Beware a House of Lies: Negligent Misrepresentation in Real Estate By Ivan Merrow Negligent misrepresentation is a more specific type of negligence claim used to compensate victims of lies or misinformation that cause them harm. In general, people are most vulnerable when relying on professional advice to decide what to do next. For example, when buying a home, people rely on the advice of their real estate agent and the representations made by the seller when making their decision. If either the seller or real estate agent knowingly deceives the buyer during the sale, the deceptive party may become liable for negligent misrepresentation. That was exactly the situation in the leading negligent misrepresentation case Krawchuk v. Scherbak, which was decided in the Ontario Court of Appeal in 2011. Krawchuk epitomizes every homebuyer’ nightmare: after purchasing her first home, the plaintiff Ms. Krawchuk discovered that the house had serious structural defects and plumbing problems. The sellers knew there were problems with the home, but did not disclose the defects. Ms. Krawchuk moved in and noticed the foundation was shifting. She also soon found out that the plumbing was ramshackle. The eventual repair costs exceeded the value of the entire home’s purchase price by $80,000. Krawchuk tells us the case the plaintiff has to meet for a negligent misrepresentation claim to succeed: the defendant owed the plaintiff a duty of care based on a “special relationship”;the defendant made statement(s) to the plaintiff that were untrue, inaccurate or misleading;the defendant acted negligently in making the statement(s);the defendant reasonably relied on the statement(s); andthe defendant sustained damages as a result. Ms. Krawchuk was found to have a special relationship with the sellers. They had a duty to disclose known defects and errors in the home to potential buyers. The sellers’ statements were found by the court to be plainly untrue. The Court found that the sellers were also negligent, because once a home seller chooses to “break the silence” about the condition of their home, they must speak truthfully and completely. Importantly, Ms. Krawchuk was able to demonstrate that she relied on the sellers’ statements to make the purchase. She may not have been successful if there was evidence that the lies or misinformation were not a determining factor in her purchase. Ms. Krawchuck actually asked the sellers about the sloping floors and seemed content with their answer. Little did she know that the floors were sloping because the structure was falling apart. The sellers attempted to argue that the sloping floors were a “patent defect” that was obvious, and it was Ms. Krawchuk’s fault for failing to inspect the house properly. The Court disagreed, because the purpose of the sellers’ information form was to tell the buyer about any known defects. Home buyers do not have a duty to challenge the honesty of home sellers—they should be able to reasonably rely on the sellers’ disclosure. Finally, Ms. Krawchuk was in fact damaged by her reliance on the sellers’ statements. Ms. Krawchuk was compensated for her losses after a long battle. The lesson for home sellers is this: disclose all known defects in your home, or remain completely silent so buyers know they have to investigate it for themselves. Home buyers should ask plenty of questions and retain independent legal counsel when purchasing a home. If you have any questions about negligent misrepresentation, real estate transactions, or other legal issues, contact the lawyers at Devry Smith Frank LLP at 1-416-449-1400. By Fauzan SiddiquiBlog, Real EstateDecember 15, 2015November 24, 2020
Are Uber Drivers Properly Insured? Since its inception over 6 years ago, ride-sharing service Uber has continued to make headlines as one of the most controversial technology companies in the mobile era. This “uber-convenient” service, which uses an online app to connect passengers with drivers using their personal vehicles, has faced legal challenges from consumer groups, municipalities, and provincial legislators. In the face of these obstacles, Uber has continued its expansion to more than 300 cities and is now valued in excess of $40-billion (US). The Uber app allows customers to order rides on their smartphones, have them automatically billed to their credit cards, and monitor who is picking them up. One of the controversial issues that Uber faces is properly ensuring its drivers. In Ontario, the standard automobile policy excludes coverage when the automobile is used to carry paying passengers or used as a taxi. Earlier this year, the Financial Services Commission of Ontario (FSCO), which regulates provincially-incorporated property and casualty insurance companies, warned drivers and users of the ride-sharing services that they may not be protected against certain damages, losses, and liabilities that may arise out of use of the service. While Uber drivers should be opting for a more expensive commercial license, most do not, and instead, continue operating under their existing personal auto insurance policies. Under these policies, if an Uber driver were to get into a serious accident while driving for the ride-sharing company, insurers would likely limit the amount they pay out in claims. In addition, they would then go after the driver for the money for violating the terms of their personal policy. Uber has responded to these insurance concerns by providing contingent insurance to cover drivers in case they encounter problems, however, the company has been tight-lipped on the exact terms of the policy that operates in Canadian cities. Uber ensures this policy covers everyone during a fare, but there is uncertainty about coverage before and after and even during the ride. Without the details of the policy, it is impossible to know whether it provides adequate insurance for drivers and users. In the face of these insurance complications, The City of Toronto has taken steps to interfere with Uber’s operations. Last November, the City filed an injunction to shut down Uber’s ride-sharing application. According to a recent article in the Globe and Mail, The City of Toronto is claiming that Uber’s service violates municipal taxi licensing regulations—failing to meet the $2-million coverage that is required to operate under city bylaws. However, Uber’s website maintains that it provides $5-million in insurance coverage for users. In March, a judge ruled that if the company chooses to provide a copy of its insurance policy as evidence, the document must be made public. Uber has argued that the document is a “trade secret” and that making it public “would cause serious harm to its commercial interests and competitive position.” But Justice James Diamond of the Superior Court disagreed with this, stating in his ruling, “I am not satisfied that Uber has presented sufficient evidence to show that disclosure of the insurance policy would lead to a loss of any competitive advantage.” This week, the Superior Court of Ontario put the issue surrounding Uber’s operations to rest, for the time being, dismissing the city’s application for an injunction. In his decision, Justice Sean Dunphy concluded that there is “no evidence” Uber is operating as a taxi broker, and therefore not subject to city bylaws regulating taxis. As a result, Uber will continue its operations in Toronto. For more information regarding this blog post or any other insurance-related topic, please contact our insurance defence group at https://devrylaw.ca/insurance-defence/ or our personal injury group at https://devrylaw.ca/personal-injury-law-firm/ “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, Insurance DefenceJuly 16, 2015June 16, 2020
Time of Essence Clause in Real Estate Transactions Remember that time when you made a reservation for a restaurant but later forgot about it or changed your mind right before? And then you breathed a sigh of relief knowing the restaurant will never know who you are and you will not have to pay a fine for going back on your word. Although a rather large leap, the same cannot be said for real estate transactions. Almost invariably in Canada, a contract of sale for a piece of real estate property will expressly provide that time is of the essence. So if you change your mind about purchasing the property or cannot attain suitable funding in time for the closing date, for instance, you may be liable for damages and have the contract come to an end. However, there are several important things to note: You cannot rely on the clause unless you have demonstrated that you are ready, willing, and able to complete the agreement. In other words, if both parties are not ready to close on a real estate transaction, neither party can immediately rely on the clause to bring an action for specific performance, damages, or termination of the contract. Similarly, you must proceed diligently to fulfil your obligations, and not act in bad faith by interfering with the other party’s ability to fulfil their responsibilities. Further, a clause providing for the time of essence in a contract of sale can be negated largely in three different ways: Waiver: If one party in a contract takes action that makes it clear that the strict contractual provisions will not be enforced. For instance, if both parties agree to extend the closing date by two days then there is a waiver. Election: When one party breaches the contract and for instance does not have the requisite financing completed on the closing date, the other party could agree to extend the closing date. Bad faith: As discussed earlier, if the transaction fails to close because of one party’s lack of action or bad faith, that party cannot rely on the time of essence clause. So just remember – take more care and time in entering into an agreement to purchase real estate than you would for where will you have dinner tonight. For more information or any other questions regarding real estate transactions, please contact our real estate lawyers. “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, Real EstateJuly 16, 2015June 16, 2020
Bankrupt Employer ≠ Helpless Employee It has long been recognized by the courts that there is a power imbalance between employers and employees. Given the nature of the employer-employee relationship, one may be able to see why an employee may feel as though they are at the mercy of their employer. Luckily, there are statutory safeguards to place employees on an even playing field with their employer. An employee will often rely on a employer to be paid for the work they perform, as well as any benefits to which they were entitled under the employment contract. After working for an employer for an extended period time, it is not unusual for an employee to become heavily dependent on the steady stream of income and benefits from their employer. It would be understandable then that an employee, who showed up to work one day to find that their employer has gone bankrupt, would panic, and feel vulnerable and distraught. Such a scenario may evoke memories of the recent news that Target would be bowing out of the Canadian marketplace. Target, however, has not gone bankrupt in Canada – it has filed for creditor protection under the Companies’ Creditors Arrangement Act (CCAA), which is perhaps a topic for another blog. That being said, their current situation in Canada acts as a good starting point to discuss what employees can do in the case that their employer goes bankrupt. This was also recently discussed in another article in The Lawyers Weekly which you can find here. Employees of a bankrupt employer are not entirely without the means to try to recover unpaid wages or termination and severance pay. One of the means an employee can use is the Wage Earner Protection Program (“WEPP”). According to Service Canada, the WEPP “compensates eligible workers for unpaid wages, vacation, severance and termination pay they are owed when their employer declares bankruptcy or becomes subject to a receivership under the Bankruptcy and Insolvency Act.” WEPP is therefore an extremely valuable resource for an employee faced with a bankrupt employer. Employees’ claims for unpaid wages, termination pay etc., are equivalent to that of unsecured creditors. In other words, employees would be closer to the end of the line of creditors hoping to get whatever assets (liquidated or not) the company had remaining. This could mean that by the time it was the employees’ turn to collect on their unpaid wages or termination pay etc., the company may not have anything left to give. WEPP, however, is not paid out of the assets of the bankrupt company, but rather directly from Service Canada. This gives employees some certainty that, if they meet all the necessary criteria set out by WEPP, they will be able to recover some of the money their bankrupt employer owes them. If found to be eligible for WEPP, it appears that an individual can receive a maximum payment equaling up to four weeks of insurable Employment Insurance earning which in 2015 is $3,807.68. Another place employees can look to for help when their employer is felled by bankruptcy is the Employment Standards Act, 2000 (“ESA”). Under section 81 of the ESA, directors of an employer can be liable for wages in a few instances, one of which is if, “the employer is insolvent, the employee has caused a claim for unpaid wages to be filed with the receiver appointed by a court with respect to the employer or with the employer’s trustee in bankruptcy and the claim has not been paid.” (s.81(1)(a)) This acts as a remedy for employees to seek compensation from directors in the case that after bankruptcy they have been unsuccessful in recovering unpaid wages. It is important to note that this remedy only applies to wages, and not termination or severance pay. In short, while a bankrupt employer may mean the end of your employment, you are not entirely helpless and if you choose to avail yourself of some of the avenues explained above, you have a chance of recovering at least some of what you are owed. By Fauzan SiddiquiBlog, Employment LawJune 9, 2015December 3, 2020
Does Child Support Affect Child Custody or Access? Every family law professional, and every family court judge, will tell you that child custody and access are completely separate issues from child support. How child support is determined is completely different from how judges decide who gets custody. However, there are at least two ways in which child support can influence parenting issues in family court cases: Failing to pay appropriate child support immediately gives the impression that a parent does not care about the child. That can affect how a Family Court Judge or Family Arbitrator views that parent’s fitness as a parent. Shared Custody/Shared Parenting changes the way Child Support is Calculated. Sometimes people view shared custody as much as a financial arrangement as a parenting arrangement in the children’s best interests. However, things can work out differently than they expect. The Importance of Paying Child Support Right From Separation Child support is the right of the child. The right of children to share in their parents’ wealth exists from the moment of separation. It is a big mistake for a parent to withhold child support to the parent with whom the children primarily reside. It costs a lot of money to raise children. They have on-going needs. When one parent leaves the children with the other parent, that parent must recognize that the children’s needs continue. That means paying appropriate child support right from separation. You can use online tools to figure out your base child support obligation. When parents do not recognize that their children still have financial needs after separation, by immediately paying appropriate child support, Family Court Judges interpret that as a parent not caring about the children’s needs. Judges view parents who do not care, or understand, their children’s needs as poor parents – parents who cannot make good decisions for their kids, and therefore should not have custody. That leads Family Court Judges to believe that parents who do not immediately start paying appropriate child support as parents who should not have custody. That, of course, can be an incorrect assumption by the Family Court Judge. But a parent who starts off giving the Family Court a bad impression of him or her as a parent will have a much harder time in their case. That parent has barriers to overcome to get the parenting arrangements that he or she wants – barriers that he or she would not have had if she or he had shown devotion to the kids right from the start by paying child support. You can make sure you are doing the right things after separation by speaking to a top family law lawyer, and by watching the video below that sets out some of the other mistakes that you need to avoid:https://www.youtube.com/embed/bgIewOxGDlw?rel=0 Under section 9 of the Child Support Guidelines, child support changes when the children spend close to an equal amount of time with each parent. The magic number is 40%. When a child spends 40% of his or her time with a parent, that parent no longer has to pay the table amount of child support, but pays another amount that reflects a fair sharing of the costs of raising that child. The principles for how parents should financially support their children in shared parenting situations were set out by the Supreme Court of Canada in the case of Contino v. Leonelli-Contino. To summarize, when children share their time close to equally between parents, the starting point is that the parents each pay the table child support to the other. However, the way that works out, is that the parent with the higher income pays his or her table amount of child support minus the other parent’s child support obligation. For some parents, they want to have the children for forty percent or more of the time so that they can get a “break” in child support. Several family court judges are suspicious when a parent seeks to move to shared parenting because they want the break in child support. if the judge believes that a parent is more interested in the break in child support, than in the child’s best interests, that judge will not order shared parenting. If a parent wants shared parenting out of a since interest in being very involved in the children’s lives and protecting their interest, that parent may actually want to offer to pay full child support so that the judge has no doubt about that parent’s motives and feels safe ordering shared parenting. In addition, a parent who wants a shared parenting regime should watch the video below, which sets out when shared parenting, and other parenting arraignments, work best for the children, to make sure that the plan is best for the children and the judge will see that too:https://www.youtube.com/embed/i8y37J0ipzU There are some additional consideration regarding child support in shared parenting situation. First, in Contino, the Supreme Court said that the ‘set off” of child support was only the starting point. If that approach did not result in the parents sharing the costs of raising the children in proportion to their respective incomes, then the Family Court should make a different child support order that does. For example, a Family Court Judge will not order “set-off” or reduced child support, where one parent continues to bear the bulk of the cost for raising the children. Set-off only works where both parents are not only sharing parenting time, but also sharing the costs of raising the children. A second consideration regarding child support in shared parenting situations is that it does not always save money. Kids can be expensive. When the children are being raised in two homes instead of one, the children’s expenses are often not divided in two, but multiplied by two. Each child may need two beds, two sets of clothes, two TVs, two gaming systems, two bicycles, two sets of toys, and the list goes on. In shared parenting, a parent may find that child support goes down, but the extra expenses that parent pays are much more than the decrease in chid support. Many parents in shared parenting think it would be “cheaper” to have the children live with the other parent and just pay child support, but cannot do that because of how involved they are with their children. A third consideration is that in several shared parenting scenarios the support paying parent may pay more support than when the children have one primary residence. This is particularly true when one parent makes a lot more than the other. In that situation, the “set off” of support may not result in much of a decrease in child support. However, because to the adjustments to tax benefits and deductions, and other cash flow considerations, when the Spousal Support Advisory Guidelines are applied, the decrease in child support is more than made up fore by an increase in spousal support – and spousal support may not necessarily end when a child reaches 18 or finishes school as is the case for child support. It is important to have a good family lawyer do the support calculations for you to figure out the most prudent way to arrange support in light of your family’s circumstances. Child Support and Child Custody Are Still Separate Issues Despite the above, child support and child custody are not legally linked. So, except for the circumstances described above, parents should not try to link them. For example, a parent cannot deny access because the other parent is not paying child support. Similarly, a parent is not “entitled” to see the children just because he or she is paying child support. How much time a parent spends with the children and when is determined based on what is in the child’s best interests, not based on how much child support that parent is paying, And telling the children how much support you are paying is never a good idea. That is involving the children in adult issues, which can only be harmful (and judges do not let parents see children if it is going to cause harm.) Judges will not order that the wealthier parent get the children because he or she will be able to give the children a better lifestyle. Child support is supposed to permit children to share in the wealth of both their parents. Saying the other parent is “too poor” to raise the children properly is a pretty good way to anger a judge and lose your case. Finally, paying child support does not mean that a parent gets to dictate how the other parent raises the children, or even how the receiving parent uses the child support. Unless a court or arbitrator decides otherwise, what a parent does during his or her “parenting time” is not the business of the other parent. After separation, parents do not get to control how each other uses their money, including child support. If a parent is using child support money to buy drugs or alcohol, or gambling it away, then the support paying parent may have a case to say that the receiving parent is a bad parent because of addiction issues. But, that determination is based on each parent’s parenting ability and the best interests of the children – not on a consideration of child support. There are a lot of things to consider in each of child support and child custody. There are more things to consider, and things get more complicated, when the two issues interact. In addition, a lot can change depending on the specifics of your situation. In these situations, you really need to set up a consultation with a good family lawyer to learn your rights and obligations in your specific circumstances. Make an appointment to meet with Certified Specialist in Family Law, John Schuman, by calling 416-446-5847 or emailing him. We respond to all inquiries promptly. By Fauzan SiddiquiBlog, Family LawFebruary 19, 2015December 5, 2020
Reducing Child Support with an RESP Toronto family law expert John Schuman recently addressed a pressing question that plagues many separated parents as their children grow: “I do not have a legal separation in place in Ontario. I have been paying child support for my 16 and 17 year old daughters at $900.00 a month for several years. My oldest daughter starts university in September. My wife and I contributed towards an RESP and there is now $120,000 in the plan. My daughter will be living with her mother and attending university. My wife is talking about a divorce and wants me to provide financial disclosure. I have nothing to gain by obtaining a divorce now. My income is $60,000 annually and I was wondering if I could reduce the support paid and have the money come out of the RESP. Can my wife force me to disclose my assets and proceed with a divorce? I don’t want to go to court and have a court order if I can avoid it.” It sounds like you have a good case to change the way support is paid. Child support is much more flexible after age 18. Available funds such an RESP should be used first. When it comes to university and college expenses, parents contribute to those expenses, above what the child could reasonably contribute, in portion to their incomes with some consideration as to what is affordable. For more on these types of expenses, you may want to listen to this podcast. RESPs can significantly affect what each parent must pay while a child is in post-secondary education. Generally speaking, parents can use an RESP to cover their portion of a child’s post-secondary education expenses. This means that if one parent put all the money into the RESP, what comes out of the RESP will be considered that parent’s contribution to the post-secondary education expenses. There is some benefit to doing that after separation as the parent who uses the RESP will also get to use the government credits and the investment’s growth as part of his or her contribution, while the other parent has to pay using all of their own money. Where both parties contributed, but in different amounts, the money used out of the RESP is often allocated to each parent’s contribution in proportion to what each parent contributed. Where both parents contributed equally, then the RESP is considered an equal contribution from each parent. The child also has an obligation to contribute to his or her own educational expenses by applying for scholarships and bursaries that are available and by working if there is not enough money to cover school expenses, although that does not sound like it applies in your case. Also, you should note that when you are contributing to a child’s post secondary education expenses (either through your RESP contribution or directly), there may be a change to the base child support where the child is going away to school. Part of the expenses that the parents will be sharing are for things like residence, meal plans and other living expenses that would usually be covered by base support. So, it is common for base or table child support to be reduced so that one parent does not pay for the same expenses twice. It may also be the case that spousal support would be changed as well. See this webpage for details. If you want some information about how to change a support order, watch this video. You can also learn a lot more about these child support issues, and other family law matters, by reading this $20 easy-to-understand book on Ontario Family Law. Since these child support for children in college or university cases depend a lot on the particular facts, you should probably speak to a good family law lawyer to find out how the law applies to your specific situation and determine your best options. By Fauzan SiddiquiUncategorizedOctober 28, 2014December 1, 2020
Canada Revenue Agency (CRA) Offers Advice for Settling Tax Dispute Claims, Part 1 On June 19, 2014, the Canadian Tax Foundation (“CTF”) held an event titled “Tax Dispute Resolution: an Inside Look from the Government’s Perspective.” Devry Smith Frank LLP (“DSF”)’s tax litigation team attended the event to better assist its corporate and personal clients to resolve their disputes with the Canada Revenue Agency (“CRA”). Part one of this three-part article series begins with Ms. Anne-Marie Lésvesque, Assistant Commissioner of Appeals for the CRA: CRA has a two-year backlog of ongoing donation tax credit disputes Ms. Lésvesque, speaking for the CRA, explained that the timely resolution of disputes is made more difficult by an imbalance between resources dedicated to the CRA’s appeals unit and the number of ongoing disputes. As an example, Ms. Lésvesque explained that the CRA is currently dealing with a glut of 175,000 donation tax credit disputes. In a regular year, the number is closer to 50,000 to 60,000. Ms. Lésvesque estimated that it would take one to two years to eliminate this backlog. In the meantime, tax litigation lawyers like those at DSF can work with you to protect your rights while moving your tax dispute closer to resolution with the CRA. Avoid commonly used arguments that are commonly unsuccessful Speaking from the CRA’s perspective, Ms. Lésvesque also suggested that repetitive appeals such as the “natural persons argument” have increased in popularity but are not succeeding at the appeal level or in tax court. Toronto tax lawyers like DSF’s own save their clients time and money by refusing to put forward “fad” arguments that are unlikely to be successful. Cases of legal interpretation are more likely to go to trial Ms. Lésvesque also shared that while the CRA appeals process must be viewed as impartial, it is legally bound to follow the CRA’s published interpretation of the Income Tax Act(the “Act”). Settlement in cases where the CRA’s and taxpayer’s interpretation of the Act are different are more likely to go to trial. In contrast, the CRA is far less likely to go to trial where the facts are in dispute. Ms. Lésvesque explained that where there are issues of credibility, the taxpayer should have the benefit of the doubt, at least in his or her first dispute with the CRA. Tax lawyers at DSF can help taxpayers put forward their best case when explaining why the CRA has made errors in its tax reassessments or enforcement measures. Ms. Lésvesque suggested that the CRA’s success rate at trial is currently 80%. Having a great lawyer on your side can increase the odds both for early settlement and success at trial in your tax law case. Stay tuned to the Devry Smith Frank LLP tax litigation blog for part two of this series that discusses what the Department of Justice’s former Senior Counsel had to say about settling tax dispute claims at this event. As always, for any tax law related matters in Toronto, Ontario Canada, contact Devry Smith Frank LLP at 1-416-446-1400. “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, TaxJuly 31, 2014June 10, 2020
Legal advice needed about child custody John Schuman, Toronto Family Law lawyer at Devry Smith Frank LLP, was asked this question just recently: “My ex is trying to get custody of my six year old and I have been the sole support to my child her whole life. Her father has been in and out of the jail and is a drug addict. He claims that he changed but I am not buying it. He is abusive and I have police reports to prove it. I also have papers from children’s aid society saying that he is unfit parent. What should I do?” Based on what you said, it sounds like your ex has an uphill battle to get custody of your child. Judges have specific factors that they have to consider before making an order for custody of a child. Those factors help the judge decide what order is in the “child’s best interest.” You may also want to listen to this podcast that goes over not only how judges decide custody cases, but also what “custody” actually means. However, as the decision comes down to what is best for the child, it is difficult for people who are abusive, or have substance abuse problems, or have who have concerned a children’s aid society to get custody of a child. Access is a different matter. This is for two reasons. First, access can take many forms, occur in different places, can be supervised, or occur in a therapeutic setting, or for limited times. All of these considerations may make it possible for access to be “safe” for the child. Judges won’t order access if doing so may put the child at risk of harm. However, there are only very limited circumstances where the risk of harm cannot be addressed by supervised access. Second, from a psychological and developmental perspective, there is a great benefit to children in knowing who their parents are. Children form a sense of identity by knowing who their parents are – even if they form a sense of identity by deciding that they are not like their parents because they don’t like who their parents are. Children who don’t know their parents do less well psychological because a piece of their identity is missing. So, for the child’s sake, courts do like to try order some access. What children want, or what they think they want, is not determinative of anything in custody and access cases in family court. There can be difficulty where a parent wanders in and out of the child’s life on the parent’s whim. That can be a bad situation because the child does not get to really know the parent, but suffers a loss, or perhaps feels rejected every time the parent disappears. In those cases access may not be a good idea. A child psychologist or social worker may be able to help you and your ex sort out what is best for your child. However, that option is only possible if both parties agree on the professional and agree to participate in good faith to work for the benefit of the children. If the parents can do that, they can come up with much better solutions than a court may order because they can focus on the specifics of the child’s life and needs that a judge may not hear about if the parents do not present their cases carefully and effectively. Child custody cases can be very difficult and there can be a lot at stake for the children. For difficult parenting cases, it is extremely important to speak to a good family lawyer who knows how the law could apply to a specific situation and can help you explore all the options for dealing with the problems. You may also want to pick up a copy of this $20, easy-to-understand book on Ontario Family Law. It explains custody-access law, how judges make custody and access decisions, the court process and other options for working out parenting matters – there are a lot of better options for working out parenting conflicts that result in tailor made solutions that benefit the children more than a court imposed custody order, but court may be necessary in some cases. For more information regarding child custody, access or any other family law related topic, please contact Toronto family lawyer John Schuman at 416-446-5080 By Fauzan SiddiquiBlog, Family LawJuly 9, 2014December 3, 2020
Toronto Family Lawyer Answers FAQ On Spousal Infidelity Read below as Devry Smith Frank LLP’s Toronto family lawyer, John Schuman answers a frequently asked question regarding spousal infidelity. Q: What are the first steps to take when you find out your husband (or wife) is cheating? Can you change the locks and empty the bank accounts? A: Finding out that your spouse has been unfaithful can be a very upsetting time. It can feel like a profound betrayal of trust. Even though you may feel very angry, you need to be very careful. If you act impulsively, you may do things that will really hurt your divorce case, possibly result in you losing custody of the children, or getting less money that you should. There are some general first steps to take when you separate. They are covered on this webpage. However, there are some specific considerations when one spouse has been having an affair, which are detailed below. First, if you are married, you cannot just change the locks on the house. Your house is a “matrimonial home” and that gives it special status. Section 19 of Ontario’s Family Law Act says that both married spouses have an equal right to stay in the house, no matter who owns it. They both have that right until they are divorced, or they agree in writing or a court orders otherwise. So, if you just change the locks and/or throw your cheating spouse’s possessions on the front lawn, you are breaking the law. That could result in a Family Court Judge kicking you out of the house (even if you own it) or believing you are mentally unstable and taking your kids away to “protect them.” Matrimonial Homes also create other unique problems. For more on that, read this webpage. However, one important consideration is that you may lose half of what you put into the house to your cheating spouse. So, rather than acting impulsively, it is better to plan out what you are going to do before your confront your spouse. That way may be able to create a situation where you can get more from him or her. If you are not married, and you are just living together, where you meet the definition of “common-law” or not, your house is not a matrimonial home. It does not have any special status. If you and your spouse both own it, you cannot just kick your spouse out without a court order. If you are the sole owner, then you may be able to just change the locks, but you might get a visit from the police so your former partner can get his or her things. Acting impulsively may still hurt you in a child custody case because it may make you “look crazy.” Taking the high road can really pay off because Family Court Judges can be sympathetic to you as the “cheated-on” spouse and may want to help you more if you act responsibly and that can lead to court orders that are in your favour. In a similar way, you can look really bad if you just go and empty the bank accounts. There is a lot more that can be gained if you do not reveal that you know about the affair right away. For example, you can get print-outs of everything that is in the accounts. You may also be able to get copies of some of your spouse’s bank statements or other financial records (make sure you put them back so you are not stealing), which will let you know what assets and debts your spouse has. That can be very useful when you meet with a family lawyer to decide on the best strategy for moving forward. It can also keep your spouse from hiding assets, or give you tips about where assets are hidden before your spouse knows to hide this information even from you. Obviously, if you look at the accounts and you find that your cheating spouse is taking money out of accounts and giving it to the “new partner” or someone else or hiding it away, you will want to get a court order to stop that. It is better to go to court and get an order freezing accounts and ordering your spouse to trace where money went than to just take the money out. When a spouse is stealing money from you, you can go to court without telling your spouse and get an order freezing accounts without them knowing. You can then give the order to bank and all of your spouse’s accounts may be frozen. That keeps your spouse from taking any more, it may cause him or her embarrassment when a debit or credit card does not work at a store or restaurant and it starts off the court proceedings with a judge believing your spouse maybe dishonest. You should speak to a family lawyer to make sure you do this motion right because you don’t want a judge to believe that you are the dishonest one. A family lawyer can also make sure you get the best order possible. It is also important that if you have children, that you address the cheating with them in the right way. In many, or most, circumstances, that means not telling them about the affair at all. Your children may be as hurt as you about what happened. You do not want them to suffer. Also, judges view parents who try to damage their children’s relationship with the other parent as a bad parent – so much so that they may take the kids away. You should talk with a parenting professional (a social worker or child psychologist) about the best way to talk to your kids about the separation, divorce and possibly the affair. Even though you may be angry, you don’t want to hurt your kids. Judges do not view an affair as a reason for one parent to bad-mouth the other to the kids. Canada has a system of no-fault divorce. This means that one party having an affair does not entitle the other to more money or custody of the kids or any other special treatment. One of the ideas behind this is that the happening of an affair may be a symptom that the marriage was not working rather than the reason that it ended. In any event, the law does not give the judges any power to give you more money, or give you sole custody, or punish your spouse just because your spouse had an affair. So, going to court and asking for favourable treatment because your ex was unfaithful will not get you anywhere. Judges cannot address the strong emotions you feel after being betrayed by your spouse. That is not there job and the law does not let them do it. In fact, acting on those emotions, and trying to punish your cheating spouse may get you in trouble in court – especially if you do the things listed on this page. Judges expect that in court you will be rationale and do the right thing no matter how angry you are or how much it hurts. However, that does not mean that you cannot come out ahead of your cheating spouse; it only means you have to be smarter about how you do it. There are a number of traps and pit-falls in Ontario Family Law. There are things that a spouse can do, or fall to do, that can really hurt their case, and which they may not even know about. The issue of losing a contribution to a matrimonial home is just one example. Another is a spouse essentially losing “custody” of the kids if she or he moves out leaving the kids behind. There are many more examples, many of which can be found in this $20, easy-to-understand book on Ontario Family Law. If you know your spouse is having an affair, but your spouse does not know you know, you have the opportunity to “set things up” so that when you separate, you come out far ahead. This is why it is a very good idea to contain your anger and speak to a good family lawyer, rather than confronting your spouse. Containing your emotions when you learn your spouse has been unfaithful can be very difficult. The anger, sadness, and profound sense of betrayal that you may be feeling are all natural. As noted above, they have no place in your “legal divorce.” Those emotions can only get you in trouble and hurt your case. A good family lawyer will refer you to a counselor or divorce coach to help you move through your emotional divorce. That is where you have to deal with your feelings so that you can keep your mind sharp to allow you to make the decisions that will get you ahead in the legal divorce. Another consideration is that an affair does not necessarily mean that your marriage has to be over. It may be possible to save it with counseling, open communication and a serious effort by both spouses to fix the damage that has been done. However, because an affair almost always means that one spouse has betrayed the trust of the other, the rules for the marriage have to change. Since there may no longer be the same certainty that each spouse is putting the other’s interests first, it is a good idea to get a marriage contract if the marriage is going to continue. Spouses can sign a marriage contract at anytime. They do not have to sign the marriage contract prior to the wedding. You do have to follow the rules set out in this podcast. The marriage contract can protect you from anything your spouse does in the future that may not be in your bed interest. You can keep your marriage, but also have assurances that if spouse betrays you again, you will be protected. More marriages then most people imagine are saved using marriage contracts to give spouses the reassurance they need that they are protected if their spouse cheats in the future. So, when you learn that your spouse has been cheating on you, your first step should be to get yourself in to see a good family lawyer to plan your next steps to make sure you come out in the best possible way. For more information on spousal infidelity or other areas of family law, please contact Toronto family lawyer, John Schuman By Fauzan SiddiquiUncategorizedMarch 10, 2014July 29, 2021