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, 2015August 13, 2024
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, 2014August 27, 2024
How Do You Give Money To Your Child, But Not Their Spouse? It is very common for parents to want to give money, or property, to their adult children, but want to keep it from their child’s spouse (their son-in-law or daughter-in-law). So common is this question, that both this podcast and this podcast address the issue. There are ways to to do this, but you need to be very careful. The law does do a little to protect these gifts. Common-law couples do not share in each other’s property. Gifts that parents give to a married child, while their child is married, are usually “excluded” from the property division scheme for married spouses in Ontario. However, there are three easy ways in which a child can lose the exclusion for that gift and have to share it with his or her spouse. These are: If the child puts the money into a “matrimonial home” because, without a marriage contract, spouses always share the full value of the matrimonial home or homes that they have on the date of separation. Keep in mind that spouses can have more than one matrimonial home. A cottage, even a partial interest in a cottage, can be a matrimonial home and so a spouse can become entitled to some of the value of his or her spouse’s family’s traditional family cottage. If the child puts the gift into an asset that is shared with his or her spouse, such as a joint bank account. The value of the gift may still be taken out of the property division calculations if the gift can be “traced.” However, three is controversy on how such tracing should be done, and there is no guarantee that any of the gift can be protected using tracing. Also, it is possible that a spouse can get an interest in an asset, even if his or her name is not on title, if he or she also contributes a lot to the asset. In that case, the attempts to protect the gift can be very difficult. There is not proof that the gift was a gift instead of payment for services or repayment of a loan or similar. However, this is easily remedied by the parents making the gift doing a formal written “deed of gift.” (The parents may need to see a lawyer to draft that document, but if a lot of money is involved, it is worth it.) Another way that a gift may be shared with a spouse is through support. Any income (such as interest) that the gift earns is income for child support purposes. That cannot be changed. The gift itself doe snot matter for child support – unless it is a related gift that looks like income or “pay” from the parents. Spousal support can also erode a gift. The gift can get caught up in spousal support in two ways. First, a large gift can either increase a spouse’s ability to pay support, or decrease his or her “need” for money. That can affect the amount of support. Second, income from the gift may be included in the recipient child’s income for the calculation of spousal support. This second consideration is also more easily remedied because a proper deed of gift can say that the gift, and income from it, are not to be considered income for spousal support purposes. There are some ways for parents to give a gift to a child and protect. The best way to protect a gift is to get the child and his or her spouse to sign a marriage contract. A marriage contract can specifically state that an asset is not going to be included in property division calculations, whether it is a matrimonial home or not. A marriage contract can even provide that a matrimonial home will not be included in the property division calculations. Alternatively, it can give one spouse a set credit in those calculations. A marriage contract can also limited spousal support, which means it can say that a gift from parents will not be included in the spousal support calculations. Marriage contracts cannot change the rules for child support. Marriage contracts work well because the child’s spouse knows about the gift and specifically gives up the right to share in it. The whole transaction will seem fair to a judge as long as the parties follow the rules for marriage contracts. To learn more about those, listen to this podcast, or watch this video. Your child and his or her spouse will both need lawyers – but that will be a worthwhile investment if there is a lot at stake. Marriage contracts can be very unromantic. Many people have difficulty asking their spouse for a marriage contract. It is often much easier for a spouse’s parents to insist on the marriage contract, and even make the giving of a substantial gift contingent on it. Another way to keep assets out of the hands of a son-in-law or daughter-in-law is to put them in a trust. The child can have use of the assets throughout he trust, but not actually own them. There are ways to attack trusts, and judges may be willing to consider those if a person thinks his or her spouse actually owns the assets. It is best not to keep a son-in-law or daughter-in-law in the dark about the trust. Also, the rules for trusts can be complex. Additionally, they have to be set up in a particular way that takes into account the particular circumstances of the family, in order for the trust to accomplish the gifting parent’s particular objectives. There can also be tax implications. It is important to hire a good lawyer to set up the trust. The rules that apply to gifts from parents to their married children, the considerations about how to protect those gifts, and many other family law issues are covered in this $20, easy-to-understand book on Ontario Family Law. However, it is a very good idea for parents who want to make any sort of substantial gift to their married children to speak to a good lawyer about the best way to do that, and to protect the gift. For more information on areas of family law, please contact Toronto family lawyer John Schuman at (416)-446-5080 By Fauzan SiddiquiBlog, Family LawMarch 7, 2014August 13, 2024
Seasonal Employees May Be Eligible For Severance Pay The holiday rush has ended and financial reports are in and layoff notices have been issued to some employees, so what about severance pay for seasonal employees? In Snow Valley Resorts (1987) Ltd. v. Barton and Director of Employment Standards, 2013 CanLII 8963 (ON LRB), the Ontario Labour Relations Board upheld an Employment Standards Officer’s decision that granted entitlement to severance pay to a seasonal employee. The Board also affirmed a notice of contravention and fine against the employer for failing to pay severance pay. Barton was employed from 1990 to 2011 by Snow Valley during the winter season. His contracts clearly stated that his employment was seasonal in nature and was for the current ski season only. Over 11 years, Barton worked a total of 80 months (6.7 years). Section 65(2) of the Employment Standards Act, 2000 provides: All time spent by the employee in the employer’s employ, whether or not continuous and whether or not active, shall be included in determining whether he or she is eligible for severance pay under subsection 64 (1) and in calculating his or her severance pay under subsection (1). In Ontario, if an employee has been employed for five years or more and the employer has a payroll of $2.5 million or more, then the employee is generally entitled to severance pay The Ontario Labour Relations Board found that Barton was entitled to severance even if his employment was seasonal in nature. Barton had worked non-continuously for more than 5 years. Under section 65(2), Barton was eligible for severance because all periods of employment were taken into account in determining if he had five or more years of service. In the end, he was not awarded the severance pay because he filed his ESA claim outside the six-month limitation period. With respect to termination pay, the Board did not award termination pay as it was found that Barton’s employment was seasonal. The Board found that seasonal employment is for a definite duration even if the contract of employment did not specify an end date. Under the ESA Regulation 288/01, employees employed for a definite duration or defined task are not eligible for termination pay. The same exemption does not exist for severance pay. Employers that hire seasonal employees or rehire employees with prior service need to be aware they may owe severance pay if the employee’s total service equals five years or more. An employee need not be full-time or a permanent employee to trigger severance entitlements under the ESA. Further, when a lay off lasts more than 13 weeks in a 20 week period under the ESA (or 35 weeks in a 52-week period if certain conditions are met), the employer will trigger a termination and severance pay if the employee is eligible. Snow Valley Resorts (1987) Ltd. v. Barton and Director of Employment Standards, 2013 CanLII 8963 (ON LRB)https://www.canlii.org/en/on/onlrb/doc/2013/2013canlii8963/2013canlii8963.html By Fauzan SiddiquiBlog, Employment LawFebruary 28, 2014November 24, 2020
Can Employers Terminate Employees While They are on Leave? This blog post was written by employment lawyer, Carrie Kennedy in response to the question: “Can employers terminate the employment of an employee while that employee is on pregnancy leave, parental leave, or any other type of leave?” Of course they can. However, doing so may be a costly decision. The Employment Standards Act, 2000 (the “ESA”), similar to the Canada Labour Code, provides that “upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not”. Despite this obligation on an employer to reinstate an employee when a period of leave ends, an employer may terminate that employee’s employment for a number of reasons including: a) the position no longer exists and there are no comparable positions to offer to the employee; b) the employer terminates the employment in compliance with the termination and severance requirements in the applicable legislation; or c) the employer has grounds to dismiss the employee that are completely unrelated to the fact that the employee is on leave. Both the Canada Labour Code and the ESA both have case law decided under them that clearly state that, while the legislation is designed to protect employees on leave, they are not designed to provide greater rights to employees who go on leave than to other employees. Although an employer may terminate the employment of an employee on leave, employers must be sure not to treat employees who are on leave more poorly than those employees who are not on leave. Often, an employee on leave will believe their rights or protections have been violated if dismissed while on leave and they will seek further compensation from the employer. The termination, therefore, even if part of a corporate reorganization, might come at quite a cost to the employer. In the recent case of Moday v. Bell Mobility Inc. 2013 CarswellNat 393, Moday, an 11 year employee of Bell Mobility, received a termination letter from Bell Mobility while she was on maternity leave. Bell Mobility argued that, due to downsizing, it had eliminated Moday’s job and all comparable jobs, so there were no comparable positions to which she could return. In this case, Bell Mobility had eliminated about 220 jobs in its reorganization. Although Bell Mobility offered Moday a severance and termination package that exceeded the requirements of the Canada Labour Code, she brought an action against Bell Mobility for wrongful dismissal. The arbitrator dismissed Moday’s complaint. It found that an employer may dismiss someone on leave when the employee’s job is eliminated and there are no comparable jobs to be offered, the right to be reinstated does not trump an employer’s right to reorganize, and being on leave does not put an employee in a superior position to other employees who also lose their jobs during a corporate reorganization. The downside to an employee who is terminated while on leave is obvious: the employee loses his or her job. The downside to an employer who terminates the employment of an employee while he or she is on leave is that it might be a very costly decision. The employer will be required to pay, at a minimum, the amounts set out in the termination and severance provisions of the applicable legislation. It will also likely have to pay legal fees if that employee brings a civil action against it for wrongful termination or makes a complaint against it before the Human Rights Tribunal. It is likely that an employer will either have to voluntarily pay an employee an amount that exceeds the minimum legislated standards in order to avoid litigation or it will be ordered to do so if unsuccessful in litigation. What this means for an employer is that, while it may technically act within the bounds of the law in terminating the employment of an employee on leave in certain circumstances, it may cost much more to terminate that employment compared to terminating the employment of an employee who is not on leave. For more information on Canada Labour Code, Employment Standards Act and Notice and Termination of Employees for Employers or if you need an employment lawyer, contact Carrie Kennedy or one of the employment law lawyers of Devry Smith Frank LLP, listed on our website by clicking on their name. By Fauzan SiddiquiBlog, Employment LawJune 17, 2013July 28, 2021
(Canada) Attorney General v. Johnstone and Canadian Human Rights Commission This blog is written by our law summer student, Michelle Farb An employer’s failing to accommodate an employee’s childcare needs constitutes “family status” discrimination under the Canadian Human Rights Act. Fiona Johnstone, along with her husband, were both employed by the Canada Border Services Agency as border services officers at Toronto’s Pearson Airport since 1998. Fiona and her husband were both required to work rotating shifts. When Fiona returned to work after her maternity leave in January 2003, she was unable to secure childcare that would allow her to work her rotating shift schedule. She requested an accommodation in the form of three 13-hour fixed shifts per week. Her request was denied by the agency on the basis that they would not provide full-time employees with fixed shifts for child-rearing responsibilities, but they would provide them for medical or religious reasons. Due to her denial, she was given part-time hours, with less pay for overtime hours and a pro-rated pension and pro-rated benefits. After the birth of her second child in 2005, she made the same request, and was denied again. In April 2004, Fiona filed a complaint with the Canadian Human Rights Commission, on the basis that the agency discriminated against her on the prohibited ground of family status, contrary to s. 7(b) and 10 of the Canadian Human Rights Act. The Canadian Human Rights Tribunal agreed with Fiona and ruled that refusing to accommodate child-care obligations constituted discrimination on the basis of family status. In response, the federal government then filed an application for judicial review of the Tribunal’s decision. The Court ultimately dismissed the government’s request for judicial review, and upheld the Tribunal’s determination that the ground of “family status” includes child-rearing and parental obligations. The Tribunal’s conclusion was reasonable due to Fiona’s evidence of her unsuccessful attempts to find appropriate childcare, her failure to be accommodated by the agency, and the agency’s failure to demonstrate they would experience undue hardship if they accommodated her. Federal Court Judge Leonard Mandamin emphasized that the legislation should be given a liberal interpretation in order to fulfill its purpose, but noted that “not every tension that arises in the context of work-life balance can or should be addressed by human rights jurisprudence.” The judge rejected the “serious interference” test adopted in the B.C. case of Campbell River, which stated that childcare obligations arising out of discrimination claims based on family status have to be of substance and the complaint must have tried to be accommodated, and must have tried to be reconciled with family and work obligations. In this case, the judge endorsed a broader approach, and defined the test as “[A]ny significant interference with a substantial parental obligation is serious. Parental obligations to the child may be met in a number of different ways. It is when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that the case for prima facie discrimination based on family status is made out.” He emphasized that family status discrimination should be governed by the same broad criteria as other alleged grounds of discrimination. Full link to decision: www.canlii.org. If you have any questions about whether this applies to you, please contact one of the employment law lawyers at Devry Smith Frank LLP. For more information on the ongoing development of family status within the case law, or childcare obligations, as well as other dependency relationships which exist within families in relation to what the law says about developing &implementing policies, such as eldercare obligations, contact us to learn more about good faith obligations of both the employer and employee. The law offices of Devry Smith Frank LLP are located in the Lawrence and Don Mills location of Toronto and we have a lot of free parking. By Fauzan SiddiquiBlog, Employment Law, Human Rights LawJune 3, 2013November 24, 2020
What Breach Of Trust In An Employment Relationship Is Too Small To Justify Dismissal? Employee of 36 years dismissed after stealing a pack of cigarettes, discharge upheld at arbitration. By: Michelle Stephenson, our law summer student A pack of cigarettes may not be too small a cause for termination, according to a Manitoba arbitrator. The discharge of a cashier (“the grievor”) by Canada Safeway for stealing a pack of cigarettes was upheld, even after he claimed that he never intended to steal them. The arbitrator had to decide whether there was cause for discipline, which turned on whether the grievor was telling the truth, and whether termination was the appropriate penalty. The grievor’s co-worker had begun to suspect that he was stealing cigarettes from work and, after confirming her suspicions, reported it, which led to an “integrity shop” investigation. After being left with extra cigarettes by the undercover investigator, the grievor put some away but claims he forgot about the other pack his apron, which he left with. He said he did not notice the other pack as he had a lot in his pockets, had spilled tea on his hands, and when he reached into the apron, only found the one pack. He was fired the following Monday, and the Union filed a grievance, claiming he did not steal the cigarettes and should be reinstated with full back pay and seniority. The credibility of the witnesses was significant in determining whether theft had taken place. In this case, the arbitrator found that the grievor’s story was not credible. The arbitrator found that the employees were generally aware of the importance of honesty to the employer, that theft would result in their dismissal, and that consumable products were never to be put in aprons. In contrast, the grievor claimed that it was normal practice for employees to put these items in their aprons. The grievor’s story and behaviour was found to be illogical and inconsistent. On the other hand, the employee who noticed his behavior was found to be credible. The arbitrator determined that the employee intentionally stole the cigarettes; however, it was recognized that theft should not necessarily result in dismissal. In Canadian Office and Professional Employees Union and Yellow Pages Group Co. 2012 ONCA 448, determining whether dismissal was appropriate required the balancing of the severity of the conduct with the severity of the penalty. The analysis is contextual, determining whether the employee’s misconduct is reconcilable with sustaining the employment relationship. Using this test, the arbitrator balanced the grievor’s many years of service with the company and impact of losing his job against his past performance (which was not exemplary, but not poor enough on its own to justify dismissal), the impact of theft on the employer, the significance of trust in the retail industry, that it was known that theft would result in termination, the importance of deterring this behavior, and the grievor’s continued denials and dishonesty. The arbitrator found that the employment relationship was irreparably damaged and the Union’s grievance was therefore denied. While the significance of trust in an industry that depends on income from easy-to-steal products is clear, and the seriousness of the issue was not the value of the item stolen, the fact that this man lost his job of 36 years for stealing cigarettes may surprise some people. This decision shows that even apparently trivial transgressions can damage the employment relationship beyond repair, such that terminating the employee is justified at law.Full decision available at: Decisions Up Werier Safeway. For more details or assistance in relation to employment law, Just Cause for Termination, Theft, Breach of Trust, Employment Relationships, or advice on what are Just Cause For Termination, kindly contact one of our Employee lawyers at Devry Smith Frank LLP. To browse some others law videos pertaining to Employment law, kindly browse through our media page. By Fauzan SiddiquiBlog, Employment LawMay 28, 2013December 5, 2020
Do You Need An Emergency Temporary Custody Order? Question: How do I go about getting an emergency temporary custody order for my son? Answer: Provided by our Toronto Family Lawyer John Schuman The first question you have to ask is whether you need an emergency temporary custody order. Judges do not like making custody orders, especially on incomplete evidence and on rushed basis unless the order is necessary to protect the health and welfare of the child. If the order is not necessary to do that, then the judge will want you to have a case conference first. Of course, that is if you really need to be in court. There are alternatives to court that are often better able to address children’s issues than court, unless there are issues of abuse, mental health, substance abuse or a very difficult parent. You can learn more about the alternatives to court in this video: Do I have To Go To Court For A Divorce. If you do have to go to court, there a large number of things you must do, and correctly. Your best chance to get this right, and avoid having a judge refuse your request, is to get a lawyer to help you. (For more reasons why you should hire a lawyer, see this webpage Why Do You Need A Family Law Lawyer. If you cannot hire a lawyer, you should get a copy of this $20 book on the basics of Family Law, which describes the Family Court Process and custody access issue, to help you: Devry Basics Ontario Family Edition. However, if that is not possible, here is the information about how to get the Order: First you should understand the legal meaning of the term “custody.” It may be different than you think. Read this webpage for more info: What Does The Term Custody Of A Child Mean? You must file a Form 8 Application General that sets out all the orders you want the court to make and the facts that give the court the legal authority to make those orders. There are certain facts that are important when judges decide any parenting issue, including custody, and many facts that judges do not care about. It is important to put the right facts in your Application, and in your affidavits, so read this webpage: How Do Judges Decide Which Parent Gets Custody of a Child?. They both explain how judges decide who gets custody. Since you are claiming custody, you must also complete, and swear or affirm before a commissioner of oaths (these are in law offices and at the court), a Form 35.1 Affidavit which sets out several facts that judges want to know regarding parenting. If you are asking for any form of support you must also complete a Form 13 Financial statement (again this has to be sworn or affirmed). If you are asking for support and making property claims, you have to fill out a form 13.1 Financial Statement. (Note that only the Superior Court of Justice has jurisdiction to deal with property claims.) Your financial statement must attach 3 years of Notices of Assessment from the Canada Revenue Agency. If you do not have them, you must get them through the CRA’s website: My Account. You have to take all of the above documents to the court to have them “issued.” The court will not allow you to issue the documents if there are errors or they are incomplete. You must create a continuing record volume for the court. For information about doing that, see this link: Formal Requirements. At the time that you are issuing your Application, you should ask the court for when you can have a case conference. You should book the first date. The court will give you a Conference Notice, that you must add to all the other documents. After issuing the documents, you must have someone, other than you, serve the documents on your spouse and anyone else who can claim to have been an active parent of the child. Service usually means identifying the person being served and a handing them the documents to be served. The person must complete a affidavit of service, attesting that he or she served the documents properly (another commissioned document). Then you must file the documents with the court. After all of that, you must bring a motion for temporary custody. Unless there is a compelling reason why the other parent(s) should not be served with your motion material (because they would do something bad to the child before the court had an opportunity to hear the motion) you must give them at least 4 business days notice. To get a court date, you have to go to the family court service counter and ask what dates the court has available to hear your motion. You must first complete a Form 14 Notice of Motion that sets out the precise order you are asking the court to make. You must also write, and swear, a Form 14A affidavit that sets out your version of the facts. (Refer to the podcast and website listed above to know what facts are important.) As you have to swear or affirm that the document is true, it is very important that the facts be accurate. It is also important that the affidavit is written in a way that is clear and compelling to a judge. To hear about what judges consider good parenting, listen to this podcast: The Voice Of A Child. The affidavit must also make it clear why you cannot wait to until the court can have a case conference to discuss the issues on your motion. One thing you must include is when the first case conference date is available from the court and also The affidavit is your “evidence” on the motion. You do not get to tell the judge any additional facts on the hearing of the motion. The motion is not a trial, so no one testifies in court. All the facts that the judge needs must be in the affidavits. If you want other people to give their evidence on your motion, they have to swear their own affidavits. You must serve the Notice of Motion and all of the other affidavits on the other parties that you have named in your Application. Unless you are trying to bring your motion without notice to the other parties, you must serve them at least 4 days before. The other parties in your court proceeding have the right to file their own affidavit in response to yours. After they do that, you have the right to file an affidavit that responds to the new facts or issues in the other party’s affidavits. However, you cannot raise any new issues in your “reply affidavit.” Two days before the set motion date, before 2:00 p.m., you must file a form 14C to tell the court and the judge whether your motion is going ahead as scheduled or not. Most courts let you file your 14C by faxing it to a special fax number, but the 14C is the ONLY document you can file that way. Then you show up on the day of the motion and you explain to the judge why the law says you should get your emergency temporary custody order (and why you could not wait for the case conference). The judge usually will have had the opportunity to read all the affidavits, so you will only want to mention the most important facts and tell the judge where to read about them in all the materials that were filed (using specific tab and page numbers if possible). Keep in mind that motions are supposed to be argued in less than an hour total. So, you should plan on speaking to the judge for no more than 20 minutes at first. That includes the time that the judge asks you questions. The other party will get about the same amount of time. Then you will get to speak to the judge about any new facts or issues that the other party spoke about that you did not mention in your first twenty minutes. However, this is not a time to repeat your points. The judge’s time is precious and there are a likely other cases waiting. So you do not want to be repetitive, or do anything else to upset the judge. The judge will then either decide your case on the spot, or “reserve” which means the judge will decide the case later and send a written decision to you. The decision is different from a formal court order. If you need a formal court order, that is another process… which can the topic of another post. Or you read about it in the book that I mentioned above. If the judge decides against you, or decides the motion could have waited until after a case conference, then the judge will likely order you to pay the legal fees and other costs of the other party. This is where not using a lawyer can really cost you. If you do not get your own lawyer, you can end up paying the cost of your ex-spouse’s lawyer if you lose. All the court forms are found here: Ontario Court Forms. Also, I did not quote the precise rules that set out all of the above, but you can find the Family Law Rules here English Elaws. Again, the process for bringing an urgent motion is a complicated one, and you have to tell the judge the right things. So, you should consult a good family lawyer and get a copy of this $20 book Devry Basics Ontario Family Edition on family law that covers all of this in more detail. . For further information or assistance with a legal matter regarding Family Law & Emergency Temporary Custody Orders, contact one of the Toronto Family Law Lawyers listed below of the page. By Fauzan SiddiquiBlog, Family LawMay 16, 2013July 5, 2023
Very Distressed Child Asked for Advice in Upcoming Child Custody Case My friend’s child asked for advice on a upcoming child custody case. His parents are in family court and have trial in 2 months on child custody and access. He has a children’s lawyer, but afraid to tell her what he wants as he doesn’t want this information to be shared with parents – he is very afraid of their reaction. The lawyer does not keep things in private as promised. The child is in a much distress and wants to talk to a judge, but OCL is against it. The child is turning 13 in few months. I don’t know how to help him, I am very concerned about his state of mind. He is vey stressed and turns it against himself by having a very low view of his worth and his life worth. His OCL unfortunately does not see it and is convinced the child is OK. What would you advise to this child and is there any way I can help? If I talk to his parents he will loose trust in me as well. This is an upsetting situation. However, the perspective on hearing from children is changing in Ontario Family Law. Many judges recognize children have a right to be heard in matters that affect them, provided it is the child who wants to be heard and not a parent trying to get the child to take sides. Technically, a child does not have to be represented by the Office of the Children’s Lawyer. A child can retain a private lawyer to assist him or her. Judges views this with some scepticism unless it is clear the child was not “put up to it” by a parent. This means the child has to contact the lawyer himself, see the lawyer without a parent present and negotiate the retainer for that lawyer. That lawyer can than advice the court and the OCL that he or she is representing the child and the OCL is no longer doing so. The court (and the OCL) will likely want to explore the situation to ensure this was not a parent influencing the child. At some point, the child may have to say that he lost confidence in the OCL lawyer. That may take some fortitude, but so will putting a position before the court on his parent’s divorce. However, a child who does all of that to ensure he is heard by the court, will convince most judges to at least listen. It sounds like you are being “neutral” in this situation, so it would likely be OK for you to assist the child in finding a lawyer. Also, it is important to remember that a child expressing a point of view is NOT determinative of any issue. Even if a judge listens, the child will only be a witness, not the decision-maker. After listening, the judge may make a decision that is different from what the child wanted. However, often just knowing that the judge has heard his point of view is enough to get a child “on board” for any decision. If you want to know the technicalities of the law in relation to courts listening to children, you can see if your local reference library or law library (often in the courthouse) has a copy of Wilson on Children and the Law. There is a long chapter on this issue. The book itself is several hundred dollars to purchase. So, you will need to find a good library to get a copy. There is more about children in the family court process, how to navigate family court, and many other family law issues in this $20 easy-to-understand book on Family Law: Devry Basics Ontario Family Edition. For further information or assistance in regards to child custody, child access or family law, please contact Toronto family lawyer John Schuman. By Fauzan SiddiquiBlog, Family LawApril 8, 2013August 27, 2024
