Am I on the Hook to Pay Child Support Retroactively? One of DSF’s Toronto Family Lawyers was recently asked the following question: Can child support payments be retroactive? My former spouse never claimed child support and on top of that refused to take support payments from me for years. Recently, my former spouse has gotten into some financial trouble and filed an application for me to start paying child support. Will I have to pay child support retroactively from the date of our separation or will it start from the date of the application? Their Answer: The short answer is it depends. Family Courts can order retroactive child support in certain circumstances. In 2006, the Supreme Court of Canada ruled on the issue of retroactive child support in D.B.S. v S.R.G. The Court looked at when retroactive child support can be ordered and in what circumstances. The Court provided a list of factors to take into account when child support can or should be ordered. Child support orders are made in accordance with the Child Support Guidelines. There is a table amount that is set out for various income levels and the amount of support is based on the income of the payor spouse and the number of children. The Guideline was introduced as a way to make child support as simple, objective and predictable as possible. In deciding whether or not retroactive child support should be ordered, the Court looked at four factors: Is there a reasonable excuse for the delay in making the application; What is the conduct of the payor parent? Whether or not the conduct was blameworthy; What are the circumstances of the child; and Will there be hardship caused on the payor parent by the retroactive payment? In deciding the quantum of the award, there are four possible dates that the retroactive child support can be awarded from. Retroactive payments can be awarded from the date: The application is made; Of formal notice to the payor parent; Of effective notice to the payor parent; or When the amount should have been increased. The Court imposed a three-year limit as a rough guideline for how far back child support can be ordered. To answer the question above, it is likely that a Court would order retroactive child support to the date of ‘effective notice’. Effective notice, as the general rule, is the date that there is an indication by the recipient parent that child support should be paid. It is not the date that legal action is taken, such as filing the application, but is the date that the topic has been brought up with the payor parent. Because there has been no blameworthy conduct on the part of the payor parent, there would be no reason to move away from the date of effective notice. In this circumstance, the parent would have to pay retroactive support payments from the date the former spouse brought up that he or she now needed the support payments. The requirement to pay child support is a free-standing obligation that can fluctuate over time with the income and circumstances of the spouses. You can read more on the topic here, on John Schuman’s blog. John Schuman is a Certified Specialist in family law and is the partner managing the Family Law Group at Devry Smith Frank LLP. If you have any questions about child support or family law generally, please visit our website and contact one of our Toronto family lawyers today. By Fauzan SiddiquiBlog, Family LawAugust 29, 2017June 18, 2020
Barrie’s Real Estate Market Struggle Many home-buyers got caught in the spring real estate downturn. As a result, many homes have had delayed closings and people have even backed out of real estate deals, not caring that they will lose their deposit. Most of this stems from the buyers deciding to purchase a home in the heat of the market, placing a competitive down payment, only to realize that as their closing date approaches the value of the home has decreased significantly, sometimes more than the deposit that was made. Others have not been able to close due to the mortgage amount not meeting the purchase obligation of the home. Peggy Hill, a real estate agent for Keller Williams said, “closings have been stalling [everywhere] since the end of June.” In Barrie, even though prices are not at the level that Toronto has seen, the drop has been precipitous. Barrie’s average price for a home was $471,822 in July, while March was $570,199. That’s a $100,000 difference in a matter of months. Back in July of 2016, 208 of 260 homes listed were sold, but this July saw 201 sales with 683 active listings. The real estate frenzy in Barrie mimicked that of Toronto, with home selling in a week well over list price. Barrie homebuyers were even experiencing the same competitive market when looking to buy, resulting in bidding wars, and competing with people who live outside of the region, like buyers from Toronto who wanted to get out of the city. Unfortunately, the tough lesson here is that “a heated market does not automatically translate into a true market value. When you take away the heat, it settles down into something that is perhaps more reflective of what true market value is,” says Appraisal Institute of Canada’s CEO Keith Lancastle. Buyers tempted to walk have to realize that they may face a lawsuit. For example, if a house is bought for $500,000 and you decide to forfeit the deposit, the seller goes and gets $450,000 from another buyer, you can be sued for the difference. Realtors may also sue, because they are not getting a commission and have to incur additional legal and carrying costs. Some advice, be careful in the current real estate market. If you can wait it out, it may be a better idea than investing now, you don’t want to end up backing out of a deal only to realize you owe money to the seller and/or are being sued by a realtor. If you are in need of a Barrie Real Estate or Commercial Real Estate lawyer, please visit our website and contact one of our Barrie Real Estate lawyers today. If you are in need of any other services or have any questions, you may also contact our Barrie office directly at 705-812-2100. By: Nicolas Di Nardo “This article is intended to inform and entertain. 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 EstateAugust 28, 2017June 18, 2020
Gender Neutral Passports will be Available for Canadians Gender-neutral passports will soon be making their way into the hands of Canadians. Canadians who do not identify as male or female will soon be able to mark an “X” on their passports instead of “M” or “F”. Allowing this change addresses the current state of society and the changes in gender identity and expression, which falls in line with the government’s most recent efforts, and will make it easier for individuals to reflect their identity through government issued documents. Gender neutral passports have been something long awaited by the Canadian transgender community. Immigration Minister Ahmed Hussen said, “all Canadians should feel safe to be themselves, live according to their gender identity and express their gender as they choose.” Before this was introduced, Parliament passed Bill C-16 earlier this summer, which amended the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds for discrimination. For more on Bill C-16, please read our previous blog post by lawyer Marc Kemerer. For more information on Bill C-16 or related issues, please contact Marc Kemerer today. More information on the government’s effort to better accommodate gender identity and expression through the modification of government issued documents through Immigration, Refugees and Citizenship Canada will be announced on August 31. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. For any questions on immigration matters, please contact DSF’s immigration group. For any other questions or information, please call our office directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform and entertain. 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, Human Rights LawAugust 25, 2017June 18, 2020
Highly-skilled foreign workers and tech industry look to Canada There has been an on-going debate as to whether expedited visa programs for highly-skilled foreign trained workers are salutary from a domestic labour point of view. One perspective decries them as facilitating domestic job theft, while an alternative perspective recognizes that such visas are necessary to fill glaring gaps in the domestic labour pool. The United States has affirmed the former position; whereas recent changes to Canada’s immigration policy support the latter. The American visa system for highly-skilled foreign workers, the H-1B visa, has a cap of 85,000. This cap is intended to prevent foreign workers from usurping well-paid jobs from Americans, in a protectionist, America-first philosophy. This perspective, coupled with pervasive uncertainty in future immigration trends in the Trump presidency, has caused certain industries dependent on highly skilled labour to look for opportunities elsewhere. Canada’s official position on highly skilled foreign workers is much more inviting. There is no cap on the number of visas, there is certainty in work permits, and, as of June 2017, Canada has adopted the Global Skills Strategy, to facilitate and expedite the entry of such individuals. This new programme has made bringing in foreign talent more accessible and timely, and it reduces costs for employers. Employers will benefit from the transparency of the programme, in knowing what the precise requirements for entry are, as well as being able to adapt their plans given the speedy two week decision-making period. These diverging perspectives are changing the international flow of labour with respect to the tech industry. Not only is the tech industry reliant on a high level of skill and specific talent, it is also especially reliant on foreign workers, particularly those from India. Large multinational corporations are seeking opportunities to have subsidiaries or satellite offices in Canada in order to benefit from a more favourable immigration policy. As well, tech start-ups are increasingly looking to Canada as a place to form their businesses. These Canadian offices are geographically close to their American counterparts, often in the same time zone, to facilitate easy cross-border collaboration. Additionally, the employees may feel more secure, given the accessibility of longer stays and permanent residency, and, potentially, citizenship for themselves and their families. This favorable immigration environment is conducive to the ever expanding tech industry. The majority of tech workers in the tech hubs, such as Silicon Valley, are foreign workers. And these innovative workers drive production and grow the economy. Investing and supporting the tech sector through inviting foreign workers actually creates domestic jobs rather than eliminating them, as these entrepreneurial tech positions create growth and expand companies and their need for more employees. The new Global Skills Strategy recognizes that Canada presently lacks the domestic talent to satisfy the demand in these industries. The new program is paving the way for Canadian cities to become more competitive in the lucrative tech through including highly skilled foreign workers. If you are an employer looking to hire a highly-skilled foreign worker, or you are a highly-skilled worker looking to come to Canada, or for any other immigration-related matters, please contact our Immigration lawyers today. For any other inquiries, browse our website, or call us directly at 416-449-1400. By: Samantha Hamilton, Student-at-Law “This article is intended to inform and entertain. 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, ImmigrationAugust 25, 2017June 19, 2020
When Discrimination is Not Prohibited: Housing Caleb Pheluong, a Vancouver resident, was served eviction papers once his landlord discovered that he intended to have his boyfriend stay over one night. The landlord expressed to him via text message that homosexuality was against her “Christian beliefs” and she could no longer have him living in her house. Is this discrimination? Sexual orientation is a protected ground under Human Rights Codes, and the landlord, in writing, expressed that his sexual orientation was the reason for his eviction. According to the B.C. Human Rights Code, no, it is not unlawful discrimination. And the answer would be no different in Ontario. Both Codes prohibit discrimination in accommodation and list sexual orientation as one of the grounds that are protected. This means, for example, that sexual orientation cannot be a reason for refusing to rent to a tenant. However, the Codes provide an exception for landlords who provide accommodation in dwellings that they also occupy. In Ontario, section 21(1) expresses that landlords who share either a kitchen and/or a bathroom with their tenant are exempt from the prohibitions on discrimination. Sharing a bathroom or kitchen with your landlord or their family takes you out from under the protection of the Human Rights Code and leaves you vulnerable to discrimination without legal recourse. Caleb fell victim to this loophole; he has no right under the law to remain a tenant in his present house or be compensated for the discrimination he faced. If, however, you fall outside this exception, you do have protection under the Code from such discrimination in accommodation. A recent Ontario Human Rights Tribunal decision awarded a couple $12,000 for their landlord’s discriminatory attitude and actions when he failed to accommodate their religious practices while he was re-letting the apartment they were vacating. The landlord’s refusal to agree to their requests, such as removing outdoor shoes before entering their prayer space, was held to be discrimination under the Code. Two very different legal outcomes from what appears to be acts of discriminatory conduct from a landlord towards a tenant. What these tenant situations illuminate is the difference in treatment of tenants who rent shared spaces with those who rent self-contained, private spaces. For information or assistance in regards to protections and legal recourse for human rights claims please contact one of our Human Rights Litigation Lawyers. By: Samantha Hamilton, Student-at-Law “This article is intended to inform and entertain. 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, Human Rights LawAugust 24, 2017June 19, 2020
Parking Ticket Disputes are About to Change Frustrated about getting a parking ticket and having to fight it, only to realize your court date is set for a time too far in the future? Well, the parking dispute process is about to change on Monday. Back in 2015 the city cancelled 880,000 tickets due to limited court capacity that created delays in hearing challenges. They hope to stop that from happening again – by taking the disputes out of the courts. So, what will the new system bring? The city will handle disputes, with a better and faster review process. You will now be given the option of disputing your tickets online or in person with a screening officer. If you choose to review it in person, you will be able to schedule an appointment or drop in. The reviews will allow you to: Explain why they should cancel or vary the violation Explain why you may need additional time to pay the fine Officers then review it and make the decision to either: affirm, vary or cancel the fee, or give people additional time to pay. They base their decision on grounds set out in the administrative penalty bylaw. Now that you do not need to go to court, you may be wondering what you can do to appeal and if you can be represented by a lawyer or paralegal. Well, you can still do so. Individuals can dispute and request a review of their violation. Once the screening officers review it, if you are not satisfied you can request a second review with an independent council-appointed hearing officer of the administrative penalty tribunal. However, the hearing officer’s decision is FINAL. At this point, you can appoint a lawyer, paralegal, or someone authorized under the Law Society Act to act on your behalf. This process will allow the provincial court system to deal with more serious matters, as they free up the courts and also allow people fighting parking tickets the opportunity to have faster resolutions. One thing that people may not be happy with (those who try to avoid getting the ticket), is that even if you drive away while the officer is writing the ticket, you will still receive it via the mail. In addition to speeding up the process for people who would like to dispute tickets, the change will also save the city money in terms of what is spent on parking enforcement, which was approximately $65.7 million. The new system is expected to reduce it to $62.9 million. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform and entertain. 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 SiddiquiBlogAugust 24, 2017June 19, 2020
Dispute over Custody of the Dog(s) By: Katelyn Bell, Summer Law Student Back in January, we discussed the issue of dogs having rights similar to that of children in a custody battle. Mention was made to a then recent decision from the Saskatchewan Court of Queen’s Bench, which held that dogs are to be considered as “property” and should not be treated as though they are children. The judge’s words came in response to a divorcing couples petition to the court for interim possession of the family dogs. Without question, custody battles over the family pets are quite common. Though it is not often that these types of disputes will make it to the courts. However, in Nova Scotia this issue has once again come before an adjudicator. Similar to Justice Danyliuk in Saskatchewan, Eric Slone – an adjudicator with Nova Scotia’s small claims court – was tasked with ruling on who gets custody of the family dog. Slone presided over a case of a former Halifax-area couple who had been sharing one of their dogs, Lily, since they separated back in 2012. However, the one of the partners sought to obtain sole ownership of Lily in early 2017. Because the previous ruling on the issue of “dog custody” stems from Saskatchewan, the decision is only persuasive in Nova Scotia, rather than authoritative. Decisions from the same level of court or other provinces or jurisdictions may assist decision-makers in reaching a decision, though these decisions are not binding upon adjudicators in other jurisdictions. However, the law in this area is clear. At law a dog is property, as it is a domesticated animal that is owned. “At law a dog enjoys no familial rights,” explained Justice Danyliuk. “In a more perfect world there would be special laws recognizing pets as living, feeling creatures with rights to be looked after by those who best meet their needs or interests, and there would be specialized accessible courts to determine the ‘best interest of the dog,’ as there are for children in the family courts,” Slone said in his written ruling released in early August. The Halifax adjudicator continued, “In this less perfect world, there is the Small Claims Court operating on principles of property law, treating pets as “chattels” not very different – legally speaking – from the family car.” “Determining ownership of family pets is not easy for the court, nor necessarily fair to the disputants. Often, as is the case here, neither of the people in this dog’s life was really concerned about legal ownership until things went wrong. When families break apart, the family dog will usually be awarded to the person with the best case for legal ownership,” Slone wrote. Unfortunately, what these decisions mean is that despite the representation in “Legally Blonde,” it is actually not in fact that easy to obtain “full canine property ownership” – Elle Woods. Here’s hoping that Canadian law surrounding pet ownership does in fact change in the near future. and that the end result is the “perfect world” described by Slone. If you have any questions about your property or custodial rights or require further information or assistance in regards to any family law matters, please contact one of our family lawyers. “This article is intended to inform and entertain. 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 LawAugust 24, 2017June 19, 2020
Former Lottery Worker Sentenced to 25 years for Rigging Winnings On Tuesday, former security director for the Multistate Lottery Association (MLA) Eddie Tipton, was given the maximum sentence – 25 years. Tipton was charged with ongoing criminal conduct for a scheme involving seven lottery tickets in five states, the court documents read. He rigged computer codes that would produce winning numbers which netted him and his accomplices millions. He was accused of buying tickets in various states and selecting numbers that he knew would win, since he designed the program that generated the winning numbers. Tipton then gave the tickets to third parties who cashed the winning ticket and split the money. In addition to the ongoing criminal conduct charge, Tipton was charged with money laundering but prosecutors agreed to drop the charge. His 25 year sentence will be severed concurrently with his five and a half year sentence in Wisconsin, which he pleaded guilty to theft by fraud and computer crime. Tipton also agreed to pay significant amounts to four lotteries, totalling about $2.2 million: $1.1 million to the Colorado lottery $644,000 to the Oklahoma lottery $391,000 to the Wisconsin lottery $30,000 to the Kansas lottery When Judge Brad McCall asked him on Tuesday how he intended to repay the money, Tipton said, “Initially, I really don’t know.” Tipton’s lawyer said he expects his client will serve three to four years before being released. At DSF we have many practice areas to suit your needs. If you require a criminal law lawyer, please visit our criminal law page and contact lawyer David Schell. By: Nicolas Di Nardo “This article is intended to inform and entertain. 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 LawAugust 23, 2017June 19, 2020
Damages Awarded in Anti-SLAPP Ontario Case United Soils v. Mohammed is the first Ontario judicial ruling to award damages to a defendant under Ontario’s anti-SLAPP legislation that was enacted in 2010. The government has been trying to stop misuse of the court with Strategic Lawsuits Against Public Participation, a.k.a. SLAPP lawsuits. These lawsuits are intended to censor, intimidate and silence public critics by burdening a person or group of people with substantial legal costs until they abandon their criticism or opposition. The decision should serve as a warning to individuals bringing SLAPP lawsuits that not only will their case be dismissed, they will be liable for all lawyers’ legal fees and a damages award. While Ms. Mohammed was awarded a nominal amount of $7,500 for her emotional stress, the court’s remarks in the decision should be a much larger deterrent. The plaintiff, United Soils, decided to sue Katie Mohammed, a teacher, after she posted her remarks in two Stouffville Facebook groups– one, a secret group called “Stouffville Mommies” and the second, a closed group called “Stouffville Buy and Sell.” Due to the group’s privacy settings, Ms. Mohammed’s remarks were not made to the public at large but to a subset of the public that had joined the groups. Ms. Mohammed posted about United Soils after her local city council voted to amend an agreement it had with the company in regards to a gravel pit that the company operates close to a geological watershed that is the source of drinking water for most of Toronto. The amendment allowed the company to deposit “acceptable fill from small quantity source sites and hydro-evacuation trucks.” Ms. Mohammed was very concerned about the amendment as groundwater contamination has occurred in Stouffville in the past. She joined a protest group on Facebook and even attended a meeting on the issue. Ms. Mohammed was not the first to notice or oppose the amendment. In fact, she had heard about the amendment from a series of tweets about the counsel meeting, posted on the city council’s webpage, that suggested that the mayor and a councillor were concerned about the risk posed by what the trucks might deposit on the site. A local newspaper also picked up the story and published it the next day. It was after these public comments that Ms. Mohammed posted in a secret and a closed Facebook group. Her comments stated that she was concerned that contamination could poison her and the town’s children. United Soils distinguished its selection of Ms. Mohammed based on her use of the word “poison.” Ms. Mohammed was soon sent a letter by the company’s lawyer. The letter demanded that she retract her statement and apologize. Complying with the letter, she promptly retracted her statement and apologized but was sent a Notice of Libel (an allegation of defamation) the next day with a claim against her for $120,000 in damages. Her lawyer David Sterns, the current president of the Ontario Bar Association, decided to take her case on a contingency basis based on his past submissions to the Anti-SLAPP Advisory Panel, a panel commissioned to limit these types of lawsuits. Due to this Panel’s report, the Ontario government amended the Courts of Justice Act to include anti-SLAPP provision s. 137.1. Under this section, if a defendant was successful in an anti-SLAPP motion they would be awarded costs on a full indemnity basis for both the motion and the action (i.e. his or her legal bill would be fully reimbursed by the other side). Section 137.1(9) also allows the court to award damages if the judge finds that the proceeding was brought for an improper purpose. Justice Lederer found that there was substantial evidence that the lawsuit was brought in an attempt to silence Ms. Mohammed and others in the community who were protesting the amendment. First, Ms. Mohammed had already apologized and retracted her statements, exactly what the letter demanded she do. The company brought four interlocutory motions to slow down the proceedings, many without merit. Soils had even conceded that Ms. Mohammed had made an “expression” “related to a matter of public interest,” which is a complete defence to defamation. Despite forcing the company to pay the other side’s (and its own) legal costs as well as a damages award of $7,500, these nominal amounts may not be enough to deter well-heeled individuals and corporations from bringing these lawsuits. As mentioned in an interview with Canadian Lawyer Magazine, United Soils has sued at least two other people in the same community for similar remarks. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400. By: Michelle Cook, Summer Law Student “This article is intended to inform and entertain. 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 SiddiquiBlogAugust 22, 2017June 19, 2020
Six Figure Income Required To Buy in the GTA If the past year of insanely high home prices hasn’t made you rethink home ownership, maybe this new report will. Two real estate companies conducted separate studies and have come up with the income requirements if you are looking to afford a home in Toronto. The results don’t seem to benefit Canada’s millennials. A majority of millennials out there, approximately 59% of those aged 25 to 30, would like to own a detached house in 5 years. Well, sorry to burst your bubble, but according to research by TheRedPin, the annual income needed to afford the average detached house in Toronto ($1.15 million) is a whopping $200,663 with monthly mortgage payments of $4,349 (based on 20 per cent down, 2.99% mortgage, amortized over 25 years). A condo does not give millennials much hope either, with the average price being $576,000, you’d need an income of $92,925 to carry payments of $1,933 a month, plus tax, utilities, and condo fees. While these numbers start to slowly change, people in their late 20s are going to continue to face affordability issues compared to their parents. While cities like Toronto provide the best opportunity for employment for young adults, they result in being the most expensive markets to own property. Going outside of the city to live and work may seem like the better option, but it is still relatively expensive: Buyers need more than $150,000 a year to cover the cost in half of 22 Toronto area municipalities Oshawa needs an annual income of $108,773 to afford an average home of $552,268 King Township needs $264,000 a year to afford $5,883 in mortgage payments with an average price of $1.6 million Many young adults looking to escape their family home, stop paying rent, and find a place to call their own, cannot afford to put a down payment on a condo or house. Nearly 25 per cent have looked to family for assistance on a down payment. Even though that number is quite low, it may continue to grow with the rate the market is going. It isn’t as easy to afford housing as it used to be. If you are in need of a real estate lawyer, please visit our website and contact one of our real estate lawyers today. If you are in need of any other services or have any questions, you may also contact our Toronto office directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform and entertain. 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 EstateAugust 22, 2017June 19, 2020