Bill C-6 and a Smoother Path to Canadian Citizenship By: Katelyn Bell, Summer Law Student Bill C-6, an Act to Amend the Citizenship Act and make consequential amendments to another Act, was introduced in Parliament on February 25, 2016. Nearly sixteen months later, on June 19, 2017, the Bill received Royal Assent. In other words, as of June 19, 2017, the Bill is now law. However, not all of the changes introduced by Bill C-6 have taken legal effect. Many changes will not take effect until Fall 2017, while others will come into force in early 2018. The introduction of the Bill brings about many positive changes, and provides benefits to thousands of Canadian immigrants. Of the changes ahead, most notable is that permanent residents of Canada may apply for citizenship sooner than they were previously able. There are many other very positive changes to the Citizenship Act brought forth by Bill C-6, including, but not limited to, the following: Equal treatment under the law: Dual citizens living in Canada who are convicted of treason, spying and terrorism offences can no longer have citizenship revoked, but rather, will face the Canadian justice system, like any other Canadian citizens who break the law. Effective June 19, 2017. More flexibility for Canadian immigrants: Applicants no longer have to declare on the application form an intention to continue living in Canada once they are granted citizenship. Effective June 19, 2017. Minors can apply for citizenship without a Canadian parent: The age requirement for citizenship has been removed. Further, a person who has custody of a minor can now apply for citizenship on behalf of the minor. Effective June 19, 2017. Accommodations for those with disabilities: It is now codified law that reasonable measures must be taken to accommodate the needs of a citizenship applicant who is a disabled person. Effective June 19, 2017. Less stringent time requirements: Applicants will be required to be physically present in Canada for 3 out of 5 years before applying for citizenship. Under the previous Act, the requirement was 4 out of 6 years. Additionally, the requirement that applicants must be physically present in Canada for 183 days in 4 out of 6 years preceding their application will be repealed. Effective Fall 2017. Prior time spent in Canada counts toward citizenship: Applicants will be able to count each day that they were physically present in Canada as a temporary resident, or protected person, before becoming a permanent resident as a “half-day” toward meeting the physical presence requirement for citizenship, up to a maximum credit of 365 days (1 year of the 3 year requirement). Effective Fall 2017. Income tax filing: Applicants must file Canadian income taxes, if required to do so under the Income Tax Act, for 3 out of 5 years (rather than 4 out of 6). This requirement matches the new physical presence requirement. Effective Fall 2017. Relaxed age requirements: Applicants between 18 and 54 years of age (previously those between 14 and 64) must meet the language and knowledge requirements for citizenship. Effective Fall 2017. Seizure of fraudulent documents: Under the Citizenship Act, there will be clear authority for Citizenship Officers to seize fraudulent or suspected fraudulent documents. Effective early 2018. Federal Court authority: The Federal Court, as opposed to the Minister, is the decision-maker in all citizenship revocation cases, unless the individual requests that the Minister make the final decision. Further, individuals will have a right to appeal the decision if their citizenship was revoked because of fraud. Effective early 2018. Without question, the changes introduced by Bill C-6 are positive in nature. In reversing many of the changes to the Citizenship Act introduced by the previous Conservative Government, the Liberals have made their position on immigration crystal clear — “A Canadian is a Canadian is a Canadian.” (- Justin Trudeau in spar with Harper over the right to revoke citizenship (2015)). Not only are the changes under Bill C-6 contrary to the Conservative agenda, but the Liberal government’s approach to immigration in general is in stark contrast to President Trump’s approach in the United States. As Canada becomes more generous, the U.S. continues to crack down on immigration. If you have any questions regarding Bill C-6 changes, or are in need of an immigration lawyer, please contact Devry Smith Frank LLP’s immigration lawyers today, or contact our office directly at 416-449-1400 for more information. “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, ImmigrationJuly 18, 2017June 25, 2020
Paramedic Who Had His Mother Die In His Arms Denied Workers’ Compensation By: Katelyn Bell, Summer Law Student It is common practice for Paramedics to arrive for their shifts up to a half an hour prior to their scheduled start time. This is done in an effort to prevent the crew they are relieving from possibly working overtime hours, which would be the case if a call were to come in within the last moments of their shift. When Paramedics arrive at the station, they check their vehicles and equipment at the start of their shirt. Equipment preparation includes, amongst numerous other things, checking the radios. Often times, emergency calls may come in during this time, and when this happens, first responders who are not “technically” on the clock will respond to the call. One Paramedic, Mr. Mireault, did exactly that. Mireault is a Paramedic in Rawdon, Quebec and when he was preparing his equipment before the start of his shift, a call came in for a cardiac arrest. And the address? Mireault’s mother’s home. Mireault and his partner made the decision to respond to the call several minutes before their shift was scheduled to begin, because they were the closest to the scene. The two workers left the garage at 8:00:13, having been only officially “on the clock” for 13 seconds. When Mireault arrived at the scene, his mother passed away in his arms. As a result of this happening, Mireault has been diagnosed with post-traumatic stress disorder (PTSD). Mireault has taken a leave of absence from work as a result of his PTSD. Mireault submitted a claim for compensation while on leave to the Quebec workplace health and safety board (CNESST), and his claim was denied. Reason being, Mireault wasn’t technically on the clock when he responded to the call over the radio. For the CNESST to compensate a worker for paid leave, the workplace incident must have happened during a work shift, and it must also be unexpected and sudden. Arguably, the “incident” – that is, the death of Mireault’s mother – did happen during a work shift, and unquestionably, her death was unexpected and sudden. So why won’t CNESST honor the compensation request? According to Daniel Chouinard, president of the Fédération des employés du préhospitalier du Québec, which represents ambulance workers in the Province, the CNESST often refuses claims involving paramedics and PTSD because the pretext is that it is part of their jobs. The denial of Mireault’s claim is unquestionably upsetting and actually quite worrisome. After becoming aware of this story, many Canadians, most notably, first responders, may be asking the question, “Could this happen in Ontario?” In Ontario, there is specific law surrounding PTSD and First Responders. Bill 163, Supporting Ontario’s First Responders Act, came into force in April, 2016. Section 14(3) of the Workplace Safety and Insurance Act reads “…a worker is entitled to benefits under the insurance plan for posttraumatic stress disorder arising out of and in the course of the worker’s employment…” The legislation creates a presumption that PTSD diagnosed in first responders is work-related. Therefore, an employee doesn’t necessarily have to be “on the clock” in order to be entitled to WSIB benefits. Once a first responder is diagnosed with PTSD by either a psychiatrist or a psychologist, the claims process to be eligible for WSIB benefits is expedited, and there is no need for the first responder to prove a causal link between PTSD and a workplace event. For employers of first responders, Bill 163 has significant consequences in terms of both the additional costs arising from expanded benefit entitlements, and the onus of rebutting the statutory presumption of entitlement, if the PTSD is not work-related. In some cases, this may be an heavy onus for employers to meet, especially when one considers the statistics: first responders are at least twice as likely as members of the general population to suffer from PTSD. Ultimately, the legislation in Ontario provides far more protection to first responders than does the legislation in Quebec. But would Bill 163 protect a worker such as Mireault, who responded to a call before he was on the clock? Is an individual considered to be working “in the course of employment” when setting up equipment, even before their scheduled shift? In one decision heard at the Ontario Workplace Safety and Insurance Appeals Tribunal, the panel rationed that when performing an action related to one’s work, they are working in the course and scope of their employment: “The general rule in cases of travelling to and from work is that injuries sustained by an employee travelling to or from work off the premises of the employer are considered to have arisen outside the course of employment. Those cases in which travel to or from work is considered to be within the course of employment are exceptions to the general rule. The guiding principal in deciding whether a case presents facts which justify departure from the general rule is whether, due to the factual circumstances of the case, the worker has essentially entered the sphere of employment.” Where the worker is using equipment or material supplied by the employer but receives no benefit beyond the use of the employer-owned equipment, (i.e. pay), and when there is evidence that there is no requirement for the employer to provide such equipment or transportation, no obligation on the worker to use it and no remuneration such as wage or salary for travel time, the only possible criterion that could place the worker in the course and scope of employment would be the use of the equipment itself. Whether or not the employer is exercising control over the worker, and/or whether the worker is performing any work for the employer at the time of injury, are additional factors that the Tribunal must consider when determining whether or not the worker was “in the course of employment.” Based on the above line of reasoning, because Mireault was using equipment supplied by the employer (the radio) at the time he responded to the call, it is likely that he would receive WSIB benefits. However, if the Board finds that an employee is entitled to benefits under the insurance plan for PTSD, the employer has the opportunity to appeal the decision. If the employer were to be successful, then compensation on leave would not be provided to the employee. Devry Smith Frank LLP proudly supports First Responders. Our First Responders Group provides a full range of legal support from family law, employment, insurance claims, to business and corporate services. If you require representation or would like to speak with one of our lawyers, contact Devry Smith Frank LLP‘s First Responders lawyers today, or contact our firm directly at 416-449-1400. “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 SiddiquiBlogJuly 13, 2017June 25, 2020
Law and Society: Forever Evolving By: Nicolas Di Nardo Canadian judges are going back to school, or at least, that’s what it feels like. Judges must “understand the people they are judging” says Justice Adele Kent, head of the National Judicial Institute. That is the primary goal of “social context” education, which is cited in a federal bill now before the Senate. Questions about what education should be mandatory for judges about certain issues, such as gender-based violence and sexual assault law were front and center at a human trafficking conference, which had about 45 judges attend. Judges were shown videos of real cases, filmed with actors, with the script taken verbatim from transcripts in order to educate judges about human trafficking, domestic violence and why a victim may not leave an abusive partner, may not call the police and may have an emotional connection to their abuser. The conference was interactive. It involved the group, as they were required to participate by writing questions down, and even a single word to describe how they felt about what they saw when watching video segments. Some of these words included “horror,” “sadness,” “disillusionment” and “helpless.” The 45 judges were then invited to submit questions during a break in the conference, which was then discussed with a panel. The panel was moderated by: Alberta Court of Appeal Justice Sheilah Martin Alberta Court of Appeal Justice Sheila Greckol U.S. judge Ann Goldstein from the International Association of Women Judges Nicole Barrett, expert on law and human trafficking (University of British Columbia) One of the questions was – how common is the woman’s explanation for why she did not leave? Barrett replied: “She is isolated from others, she lacks financial independence, she has broken self-esteem, she has a fear of escalated violence, she has a fear of retaliation, that they will tell her family, a psychological bond with her abuser… once you start listing the reasons she doesn’t have, it becomes fairly overwhelming.” The second question addressed the reason why the judges were there. The question began with “until this job and judicial education, I had no way to be aware this happens to ordinary folk.” Ontario made this training to take place for new judges, a mandatory piece of education that took effect in March. The training for new judges in sexual assault law and social context education is monitored by the Canadian Judicial Council. Just like any other occupation, judges are also in need of ongoing education to be up to date. Changes in law, social context, and other advancements within our society are crucial for judges to stay on top of. Justice Martin makes a great point, “the criminal laws have changed as societies have changed,” and judges must be educated on how and why changes occurred. Social context education is another important part of this training. It focuses on the understanding of diverse life situations, to understand individuals being judged, through: Examinations of race Disability Region Poverty Mental illness Gender-based violence It is designed like the human trafficking seminar, and will involve academics and community groups. Not only must the judges change, but police, lawyers, and alternative models from the criminal justice system must do more to tackle sexual assault. 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. “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 SiddiquiBlogJuly 11, 2017June 22, 2020
Bradford Man Charged with Child Abandonment By: Nicolas Di Nardo Canada Day, the day we celebrate an important milestone, the anniversary of the enactment of the Constitution Act, 1867 (July 1, 1867). The celebration this year was a special one, it is Canada’s 150th. However, this past Canada Day a man enjoyed the day a little too much. A 33-year-old man from Bradford was charged with abandoning a child and failing to provide the necessities of life, and was held for a bail hearing. South Simcoe Police responded to a call about a man refusing to leave a bar at 1:45 a.m. on Saturday, July 1. When police arrived, he became belligerent and was arrested due to his intoxicated state. They then brought him to the police station to sober up, as there was no one home to take care of him. At about 6 a.m., the man told police that his son, 2 years-old, was home alone. Once police located the boy, they brought him to the hospital as a precaution and now the child is in the custody of the Children’s Aid Society. Devry Smith Frank LLP is a full service law firm located in Barrie, providing services to Barrie and the surrounding areas. We provide a wide range of legal services. If you require representation for criminal disputes, contact Devry Smith Frank LLP’s Barrie lawyers. For any other legal services and inquiries, please call our Barrie office directly at 705-812-2100 or visit our website. “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 SiddiquiBlogJuly 10, 2017June 22, 2020
Quebec Hunter Petitions to Make Squirrel Hunting Legal By: Katelyn Bell, Summer Law Student Poutine, a favourite among many Canadians. While some aren’t too adventurous with the meal and tend to stick with the common-yet-delicious cheese curds (me), others will go further and add bacon to the mix, or chicken, or even macaroni and cheese. And then there are some Canadians who would even take it one step further, and would eat their poutine with squirrel meat. Yes…. you read that correctly. Squirrel meat. Martin Poirier, a 21-year-old hunter and university student from Quebec has recently made news following the launch of his formal petition, which asks the Province of Quebec to make squirrel hunting legal. But why? According to the student, squirrel meat is good for you. As the law stands today, Quebecers are prohibited from hunting squirrel, which is what led Poirier to launch his petition. Surprisingly, the law in Quebec is contrary to that in many other Canadian jurisdictions, where squirrel hunting (and eating) is permissible. In British Columbia for example, gray and fox squirrels can be captured and killed at any time. Similarly, in Alberta, several species of squirrels can be hunted without a permit. Ontario however, has more stringent rules related to squirrel hunting. Though it is not illegal to hunt squirrels in Ontario, there is a cap on daily kills, and specific rules for hunting with and without a falconry bird. The Canadian government regulates recreational hunting in order to ensure that certain species of animals are protected, and that others are appropriately hunted. If an individual were to violate the hunting regulations in their province, they would be subject to significant fines. In Ontario, these fines can be issued under the Fish and Wildlife Conservation Act and the Ontario Fishery Regulations. The fines handed out for hunting violations can be quite significant, so it’s no wonder Poirier wants to make squirrel hunting legal. However, it takes more than a petition to change the law. The Quebec legislature considers specific legal issues and should they so choose, votes them into law. This is done in a number of stages in the Assembly and in parliamentary committee. Whether the legislature will approve of squirrel hunting remains to be seen. The issue is expected to be tabled in the Quebec National Assembly this fall. All this to say, it’s going to be quite a while—if ever—that you will be able to indulge in squirrel meat poutine in Quebec. 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. “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 SiddiquiBlogJuly 7, 2017June 22, 2020
The Legality of Refusing to Bake a Wedding Cake Because of Sexual Orientation By: Michelle Cook, Summer Law Student In Canada, it is illegal to discriminate against people on the basis of sexual orientation, especially in the case of commercial business services available to the public. However, a legal case challenging the ability to discriminate against individuals for their sexual orientation because of religious reasons is headed to the U.S. Supreme Court. With Donald Trump’s Supreme Court appointment of Neil Gorsuch, who is clearly pro-religion, anti-LGBT rights, swinging the majority of the Supreme Court to conservative-leaning judges, it appears the U.S. may return to an era where LGBT individuals can be openly discriminated against in the name of “religious freedom.” The Colorado case involves a Christian baker who refused to make a wedding cake for two men. Colorado is one of a few states that have anti-discrimination laws protecting LGBT individuals. The bakery, Masterpiece Cakeshop in Lakewood, was charged with violating the state’s discrimination laws. The state’s civil rights commission ordered the baker to provide wedding cakes on an equal basis for same-sex couples. Instead of complying with the commission’s order, the owner, Jack Phillips, refused to comply with it. Instead, he brought an appeal of the decision based on the 1st Amendment’s guarantee of the freedom of speech and the free exercise of religion. Phillips will also argue that as a baker, he should have artistic freedom that is not regulated by the state. The Colorado Supreme Court refused to hear the case, prompting Phillips to appeal the decision to the U.S. Supreme Court. Masterpiece Cakeshop has received a mixture of backlash and support for his decision. Interestingly, Phillips has noted that he has never strayed from his biblical teachings, even refusing to make cakes to celebrate Halloween, “anti-American or anti-family” themed cakes or ones that have a profane message. This is occurring in the U.S. while Toronto gains recognition as one of the top three most LGBT-friendly cities in the world. That is not to say that discrimination against LGBT individuals does not occur in Canada. In fact, this year a Montreal photographer named Premiere Productions refused to photograph a gay couple’s wedding. While no lawsuit was brought against them, it is clear that this conduct was illegal. This shows that while support for LGBT rights is increasing in both Canada and the U.S., there is still a fight to be made for true equality. What will be interesting to see is how the new conservative U.S. Supreme will delineate the ability to be able to discriminate against individuals based on religious values. Despite the rhetoric of American politicians, homosexuality is not a choice; someone is genetically born with a sexual orientation. Why is it still acceptable to openly discriminate against someone for who they love (an inherently personal matter) but unacceptable to openly discriminate against someone for their skin tone? 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. “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 LawJuly 4, 2017June 22, 2020
National Light Bulb Disposal Strategy to be Introduced By: Nicolas Di Nardo The federal government is looking to guide Canadians on how to properly dispose of light bulbs that contain mercury. Bill C-238, The National Strategy for Safe and Environmentally Sound Disposal of Lamps Containing Mercury Act, was given the royal assent on June 22nd, 2017. The Bill will introduce the following: Commits the government to identify ways to dispose light bulbs safely Establish guidelines for disposal facilities Promote the program to Canadians Environment minister must table the national strategy within 2 years of the Act receiving the royal assent Prior to Bill C-238, there were no regulations outlining mercury light bulb disposal, which led many Canadians to simply dispose of them in their regular garbage. The impact the above practice has on the environment is staggering. Dartmouth-Cole Harbour MP Darren Fisher explains that, “about 1,150 kilograms of mercury end up in Canadian landfills each year, and can contaminate the environment.” Considering that mercury is listed as a toxic substance under the Canadian Environmental Protection Act, and knowing the impact these mercury light bulbs have had on our environment, it comes as a surprise that there has not been an Act in place outlining disposal practices. Aside from the federal ban in 2014 on incandescent bulbs, there have not been any additional acts taken to educate Canadians and to lessen the impact of light bulbs on the environment. Currently, Fisher is encouraging Canadians to hold on to their mercury light bulbs until the new law is introduced, so that they may be disposed of properly. “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 SiddiquiBlogJuly 4, 2017June 22, 2020
The City of Brampton is Looking To the Future By: Nicolas Di Nardo The city of Brampton has hired a world-renowned urban planner to make the suburb of Toronto future-ready. Larry Beasley, urban planner, has been involved in the development of urban landscapes like Vancouver, Abu Dhabi, Dallas, and Moscow. Brampton is a rapidly growing suburb, and has one of the youngest demographics in the GTA. Currently, Brampton’s population of 600,000 is expected to grow to 1,000,000 in the next 20 – 25 years. This realization has caused the city to seek some direction from Beasley, by hopefully reinventing the city centre, and neighbourhood developments. A tough task for Beasley, considering Brampton has never had a master plan. There are certain things Beasley must put some focus on, as Brampton does lack: Alternative transportation infrastructure Business hubs A university A white collar market for residents to work in No “downtown” Beasley noticed all of the above, and also found that the city does not know what direction it needs to go, they lack a sense of how it needs to change, and hopefully he can guide them in the direction they want to go. This is evident through the residents’ comments about local councillors, saying “there has been a steady decline in the conduct, passion, and professionalism…people are beginning to lose hope that change is even possible.” By enlisting Beasley, change is possible, but it is up to the city to take his recommendation and vision, and implement it. The public will be heavily involved and informed through the process, with “community-wide conversation” and public outreach campaigns, which Beasley says they will “craft their dream in front of them.” Beasley is hoping to have the vision for Brampton’s future completed by May 2018. Suburbs have been through constant struggles, being in the shadow of big core cities like Toronto in the current landscape doesn’t help much either. A number of factors effect suburbs, such as soaring home prices, employment, and overall lifestyles of city inhabitants, which trends have shown more and more Canadians seeking suburb living over the hustle and bustle of the big city. This prompts a need for improvement to Toronto suburbs, and Brampton is looking to benefit greatly by improving their city for the future, to help it flourish. Being situated between Toronto and Waterloo, within Ontario’s planned innovation corridor, it is surprising that Brampton hasn’t called for improvements earlier. It’s time for Brampton to dream big and prepare themselves for a bigger, better future. If you need assistance navigating Ontario’s provincial policies regarding development and growth, are considering developing a piece of land, or have concerns about a development near you, Devry Smith Frank LLP’s Planning and Development Group can provide you with the guidance and support that you require. “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, Planning and Development LawJuly 4, 2017June 22, 2020
Ken Pagan granted Conditional Discharge over Beer Can Toss Incident By: Nicolas Di Nardo Ken Pagan, known as the Toronto Beer Can Thrower was sentenced last week. If you are not caught up with the incident, please look to our previous blogs: Toronto Beer-Tosser Charged With Mischief Ken Pagan: Toronto Beer Tosser Pleads Guilty Pagan was granted conditional discharge which includes: No criminal record (if he complies with probation) 12-month probation At least 10 hours of community service a month Barred from attending any MLB games (already banned from the Rogers Centre) 200 hours of community work (already has done 100 hours this year) Must stay 500 metres away from the Rogers Centre Since the incident, Ken has been delivering pizzas and working as a janitor. He does not believe he will be able to return as a journalist as a result of the incident. If you require representation for any reason, please contact our firm at 416-449-1400, or visit our website to find the lawyer that best suits your needs. If you require a criminal law lawyer, please visit our criminal law page and contact lawyer David Schell. “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 LawJuly 4, 2017June 22, 2020
Legally Bound to be Faithful During the Marriage? By: Katelyn Bell, Summer Law Student Celebrities Justin Timberlake and wife Jessica Biel made headlines a couple years back when word spread that they had an “infidelity clause” contained within their marriage contract. The clause allegedly stipulates that if Timberlake is unfaithful to Biel, he owes her $500,000.00. This type of clause is known as a “lifestyle clause,” which are more common than you would think. The clauses address non-financial aspects of a marriage, and the range of things in which they can outline is quite vast. While some clauses may stipulate how many times the in-laws are allowed to visit per year, others may set out body-weight requirements (woah), and then of course, there’s the ones that speak to extra-marital affairs. Ultimatums about infidelity are among the most popular lifestyle clauses in domestic agreements. And though infidelity clauses are quite common for celebrities – consider also Catherine Zeta Jones and Michael Douglas, or Brad Pitt and Angelina Jolie – it isn’t only celebrities who choose to include these types of clauses in their relationship agreements. The general public is making use of lifestyle clauses as well, especially those relating to infidelity. Reason being: (1) These types of clauses are a way to ensure financial stability, and (2) Having a clause of this type may be an effort on the part of one spouse to prevent (or at least try to prevent) their partner from cheating. But do they work? With regards to point (1) above, in order for the clause to afford the wronged spouse any money, the clause must be enforceable in the courts. If the domestic contract is contrary to public policy, despite its validity at the time, the court will not enforce such an agreement. In Canada, “fault-based divorce” has been eliminated from the legislation. Though the Divorce Act originally provided two grounds for divorce – cruelty/adultery and no-fault – today there is only one ground, which is marriage breakdown (s. 8 of DA). Marriage breakdown is a no-fault ground to divorce. Because Canada’s divorce legislation is “no-fault,” including a clause in a contract which explicitly puts a spouse at fault (i.e.: “If you cheat on me you owe me $60,000.00”) is most likely unenforceable. Our system is not meant to punish individuals for misbehaviour, and as such, adultery is not a determining factor in asset distribution. Though an infidelity clause has yet to be challenged in a Canadian court, the D’Andrade v Schrage (2011) decision provides some insight as to how Canadian courts are likely to respond to an infidelity clause in a pre-nuptial agreement. In this decision, the court rejected the argument that an affair during the negotiations of a marriage agreement (being negotiated after the parties were already married) would void the agreement. The court stated: “In recognition of the fact that marriages are complicated institutions, whose failure can rarely be attributed to one party or the other, the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement…” “…it is important to consider the purpose of the contract in question. It is not to enforce personal obligations such as the duty to remain faithful or the commitment to remain in the relationship. While people may feel that these obligations are part of the marriage “contract”, these are not the obligations that domestic contracts are meant to deal with.” In the United States, in a case which challenged an infidelity clause, the court found that the clause in the domestic agreement was not enforceable because it was contrary to the public policy underlying California’s no-fault divorce laws. Based on the above, it’s highly improbable that an infidelity clause would be enforced by a Canadian court. So with regards to the question of “But do they work?”, the answer to point (1) is most likely no, but what about point (2)? Will the inclusion of such a clause in a domestic agreement work to keep your spouse faithful? Reportedly, when Tiger Woods was rumored to be seeking back with ex-wife Elin Nordegren, Nordegren wanted an infidelity clause contained within their pre-nup with a $350 million financial penalty for Woods if he were to ever cheat again. Of course, whether or not the clause will work as a deterrent depends on each individual. While some spouses argue that these types of clauses are the antidote to adultery, many others may disagree. Ultimately, every relationship is different and spouses will have to decide which, if any, lifestyle clauses make sense for their relationship. If a couple chooses to insert an infidelity clause in their domestic agreement, as long as the contract has a severability clause, the rest of the contract will remain enforceable (so long as it remains legally valid), even if the adultery clause is not. If you are in need of a Family lawyer, please contact the family lawyers of Devry Smith Frank LLP for assistance, or call us directly at 416-449-1400. “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 LawJune 30, 2017June 22, 2020