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    Important Tax Information for Parents with Shared Custody

    A recent Canadian Tax Court Case has important implications for parents with shared custody and the way child support is paid and collected.  The decision in Harder v. The Queen changes the way parents with shared custody must deal with child support.   It is likely that most parents with shared custody will have to change their child support arrangements and the Family Responsibility Office will have to change its procedures to prevent running into tax problems.

    How Shared Custody, Child Support and Taxes Used to Work

    The Supreme Courts set the rules for child support in shared custody in it decision in Contino v. Leonelli- Contino.  At paragraph 49 of that decision, the Supreme Court said that the starting point for calculating child support in shared custody, which persists unless it results in an unfair sharing of the costs of raising the children, is that the parents calculate what each of them would owe under the Child Support Guidelines Tables and set those amounts off against each other.  In the majority of shared parenting situations, consistent with the Supreme Court’s decision, parents agreed to use set-off the child support amount such that the parent with the higher income made a child support payment that reflected the set off amount.

    Part of the basis of this set-off approach is that each parent gets some of the tax benefits associated with caring for the children in a shared custody situation. The amount of child support under the tables takes into account the tax deductions/benefits available to parents for having children.

    The CRA’s policy on tax credits and benefits for parents in shared custody situations states that when parents share custody of their children, they must rotate the benefits/credits for the children such that each parent gets the tax benefits for the children for six months of the year.  That policy was last updated in July 2015.

    As a result of this policy, parents with shared parenting set off support against each other and each claimed half the tax benefits for the children for whom they had shared custody.

    The Significant Changes to Child Support to Avoid Tax Problems

    According to Justice Block in his tax court decision in Harder v. The Queen, the Courts, Family Arbitrators, Family Mediators, Family Lawyers and separated parents did not properly consider the Section 118(5) of the Income Tax Act in making the above-described child support arrangements.  That section of the Income Tax Act states that a person who has to pay support for a dependent cannot claim tax deductions or benefits with respect to that dependent.  Children are dependents.  So, that means that, notwithstanding the Canada Revenue Agency saying that benefits must be rotated in shared custody situations, a parent paying child support may not claim those benefits.

    Based on the Supreme Court’s decision in Contino about setting off support in shared parenting, and the CRA’s policy that benefits be rotated in shared parenting, it seemed logical to interpret the “set-off support” paid in shared custody situation as parents notionally paying each other, but simplifying the logistics of that by having the payments flow only one way – from the higher-income parent to the lower-income parent.  This is how child support orders and agreements were written and how the FRO processed support.

    However, in Harder v. the Queen, Justice Block stated that interpretation was wrong under tax law.  Where parents set-of child support amounts, this resulted in only one parent receiving support and one parent paying support.  Under the wording of section 118(5) of the Income Tax Act, the parent paying support could not claim the benefits and credits in relation to the child or children for whom that parent was paying child support.

    According to the decision in Harder v. the Queen, the correct thing to do is for each shared custody parent to actually pay the full table child support amount to the other parent so that the full table support is flowing both ways.  The Family Responsibility Office should collect the full child support amount payable by each parent and pay it to the other parent, essentially having the support between the parents cross paths as doing a “set off” will have negative tax consequences for at least one of the parents.

    There are some obvious practical problems with the approach set out in Harder v. the Queen.  For example, a lower-income parent may not have the funds available to make the support payment until receiving the support from the higher income parent.   That would cause one of the support payments to “bounce” and one parent to “overpay” by not getting the support back to which he or she is entitled.   It will also dramatically increase the cost for the Family Responsibility Office, and the support collection agencies in other provinces, to enforce child support in shared parenting arrangements.

    However, as Justice Block points out, this complicated and tedious approach to child support in shared parenting is required by section 118(5) of the Income Tax Act and it is the way things must be done until Parliament changes the law.

    32 – How to Change a Support Order

    Justice Block’s decision in Harder v. the Queen means that most parents with shared custody will have to change what they are doing for child support.  It may also mean that they have to change their child support order or separation agreement to reflect how the Income Tax Act requires child support to be paid so that both parents can get the tax benefits related to raising the children.  The Ontario Family Law Podcast and this video give some general advice about how to change a support order or agreement.  However, the rules for separation agreements require that separated parents and spouses consult with a family lawyer, and they will probably speak to a lawyer who understands both family law and tax law to make sure the agreement or court order does what they expect.

    Obviously, parents who have just separated and who are planning on sharing custody of their children will want to make sure that their child support order or separation agreement complies with the requirements to maximize the tax relief for them.  Again, they should contact an excellent family lawyer to make sure that happens. To learn even more about child support, get a copy of this easy to understand book on the basics of Ontario Family Law as a paperback, or download it immediately as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac.  You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce.

    Obviously, there can be a lot of money involved in child support cases and only could really help a child with his or her needs (or not).  You need to get the help of a lawyer immediately to avoid financial hardship.  Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him or by calling 416-446-5847.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

     

    By Fauzan SiddiquiBlog, Family Law, Tax

    Renting in Ontario: What Every Pet Owner Needs to Know

    Can You Be Evicted for Having a Pet in Ontario? Understanding Tenant Rights

    There is a lot of confusion when it comes to renting with pets in Ontario. Many Ontarians believe it is illegal for landlords to discriminate against pet owners and that landlords cannot say no to pets. This is incorrect.

    Can a Landlord Deny a Tenant for Having a Pet?

    Landlords have the right to reject tenants if they suspect they will move in with pets. Ontario pet rental laws allow landlords to screen and investigate whether prospective tenants have pets. However, once a landlord accepts a tenant, can a landlord evict you for having a pet? The answer is no—under most circumstances.

    As stated in section 14 of the Residential Tenancies Act (RTA):

    “A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void.”

    This means that a no-pet clause in Ontario is not enforceable. Even if a lease agreement includes a pet waiver for rental property, once the tenant moves in, the landlord cannot evict them solely for having a pet.

    When Can a Landlord Evict a Tenant for Having a Pet?

    Although a pet eviction notice cannot be issued simply because a tenant owns a pet, there are exceptions where a landlord can take action:

    1. The pet is dangerous – If a pet poses a safety risk to others, a landlord may take legal action.
    2. The pet disturbs neighbours – Complaints about excessive barking or disruptive behaviour can lead to eviction.
    3. The pet causes damage – If a tenant’s pet damages property, the tenant is responsible for repairs.

    What If Another Tenant Has Severe Allergies?

    A common concern among landlords and pets is allergy-related complaints. If a tenant has severe allergies affected by a neighbouring pet, the pet owner must ensure their fellow tenant is not disturbed. Failure to mitigate the issue may result in eviction.

    For example, if pet hair contaminates communal laundry machines, a pet owner may be asked to wash their laundry elsewhere. If the issue cannot be resolved, the landlord may pursue eviction through the Landlord and Tenant Board of Ontario.

    Legal Precedents Protecting Pet Owners

    Court cases like Drewlo Holdings Inc. v. Weber, 2011 ONSC 6407 have reinforced tenant rights regarding pet ownership. In this case, a landlord attempted to increase rent for tenants with pets while keeping rates unchanged for non-pet owners. The court ruled that this violated the tenants’ right to reasonable enjoyment of the property.

    This means that landlords must be value-neutral when it comes to pets. However, if a pet genuinely impairs other tenants’ enjoyment or damages the property, the tenant can face consequences.

    Condominiums and Pet Restrictions in Ontario

    One area where tenant pet laws in Ontario differ is within condominiums. Unlike rental apartments, condos can enforce pet restrictions under the Condominium Act. This allows condo boards to pass bylaws restricting or prohibiting pets.

    If a condo’s declaration explicitly states that pets are not allowed, tenants must comply. Since many rental properties in Ontario are in condominiums, tenants should verify pet policies before signing a lease.

    Are Pet Deposits Legal in Ontario?

    Many tenants wonder, can landlords charge extra for pets in Ontario? The answer is no. Pet deposits for rentals are not legal in Ontario. Landlords cannot request additional payments beyond first and last month’s rent.

    However, if a tenant voluntarily offers a pet deposit for an apartment in exchange for being allowed to have a pet, this agreement may be upheld.

    Municipal Limits on Pet Ownership in Ontario

    Aside from rental laws, municipalities in Ontario have their own restrictions on pet ownership. If you’re wondering how many pets are you allowed to have in Ontario, the rules vary by city.

    For example, in Toronto, a household cannot have:

    • More than three dogs
    • More than six cats

    Can a Landlord Stop a Dog from Visiting?

    Some tenants ask, can a landlord stop a dog from visiting or can landlords say no pets even for short visits? While landlords cannot enforce a no pet clause in Ontario, they may have the right to prohibit extended visits if the pet causes disturbances or damages the property.

    Final Thoughts

    If you’re a tenant in Ontario, understanding rental laws for pets is crucial. While landlords cannot evict you for having a pet under normal circumstances, issues such as noise complaints, allergies, or property damage may give them grounds to take action.

    If you require legal assistance regarding pet rental laws in Ontario, contact Devry Smith Frank LLP. Our legal team is happy to assist with landlord-tenant disputes and other rental-related concerns.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Real Estate

    Yes, You Can Film the Police. No, They Cannot Seize Your Device

    Recently, a video surfaced online of Toronto Police officers doing their job in public. As long as you are not obstructing them or interfering with their work, you have every right to record and photograph them. This video that can be seen here shows police surrounding a male on the ground in restraints, while the police proceed to taser him multiple times. A disturbing video that also may show improper police protocol as the suspect was not seen as a threat at that point in time. Toronto Police are still looking into the events and the officers involved. Granted, viewers do not know what led to this point – so there is very little to consider until the police fill in the rest of the story.

    Toronto Police did explain what led to what was seen in the video in an article released by CBC News, where they also apologized. The man seen in the video was at Seaton Homeless Shelter where he assaulted another individual, then proceeded to kick out the window of the cruiser – at which point they had to remove him from the vehicle. He continued to be violent which led to the taser until he finally settled down. They state a majority of what happened is not shown in the video. The man arrested has been charged and faces nine offences -some of which being 2 counts of assault, 3 counts of assaulting a peace officer, and one count of assault with the intent to resist arrest.

    Yes, you can film the Police. No, the cannot seize your device.

    That’s a message that both citizens and our police force should understand, as it is directed to both parties so long as the recording and photographs are done without obstructing or interfering with their job.

    Toronto Police spokesperson Mark Pugash stated in the article from The Star, that the police force has been advised that “if someone is videoing them and they are not obstructing and interfering, they have every right to film.” However, a couple of police officers in the video seem to have not gotten that message and are heard saying they will need to seize the phone, something they do not have the authority to do.

    In 2014, The Huffington Post was told “there are First Amendment protections for people photographing and recording in public”, and although it is legal to film and photograph officers, there are indeed many instances we have not been made aware of that devices have been seized.

    This morning, Toronto Police reached out to the witness and owner of the video, Waseem Khan, apologizing for their actions – but mainly the comment from the one officer of “you’re going to get AIDS.” You can access the article here. They released these tweets to reassure Mr. Khan that their force will be educated as they hope to right a wrong, all stemming from the recording of a controversial arrest.

    This incident was so significant that it gained the attention of the Toronto Police Association and even the Mayor of Toronto, who found the footage ‘disconcerting’ and trusts the Toronto Police to review the matter internally.

    This is a prime example of higher authority taking advantage of their position in society, possessing the ability to overpower regular citizens, who may or may not know what rights they do have. Fortunately for Mr. Khan, he knew that what he was doing was perfectly legal, as he did have the right to record the officers in public and was not interfering with their job.

    If you feel that you have had your rights violated, please contact our Human Rights lawyer Marty Rabinovitch. If you have any other legal issues, please contact one of our many lawyers at Devry Smith Frank LLP.

     

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Criminal Law

    Leaning on Liens for Payment

    Understanding the Construction Pyramid and Subcontractor Liens

    Construction and renovation work can sometimes involve multi-layered contractual relationships between the various players in a construction project, where there are numerous complex areas of consideration. An owner or developer may hire a general contractor, who will then contract with subcontractors for various jobs such as carpentry, plumbing, and electrical work. In the same way, subcontractors may hire sub-subcontractors, those sub-subcontractors may hire sub-sub-sub contractors, and so on. This is often referred to as the “construction pyramid”. The pyramid dictates not only who works for whom, but also who pays whom: the owner pays the general contractor, who then pays its subcontractors, and who in turn pays the sub-subcontractors, all the way down to the bottom.

    The Role of Construction Liens in Protecting Subcontractors

    One of the purposes of the construction lien is to ensure that the general contractor and any subcontractors down the pyramid are remunerated for the services and materials that they have supplied towards improvement, as stated in a recent discussion regarding proposed changes to the Construction Lien Act. Thus, a lien secures the payment that is due to the general contractor and subcontractors. A lien is one means of enforcement provided under the Construction Lien Act that allows a contractor the ability to potentially take steps to sell the property and gives the contractor and subcontractors priority over certain creditors who may have claims against the owner of the property.

    Preserving and Perfecting a Lien

    As soon as a contractor begins providing services or materials to improvement, it has a lien for the value of services or materials actually supplied to the improvement. However, that lien will expire unless certain steps are taken: (1) the lien must be “preserved”; and (2) the must then lien is “perfected”.

    To preserve a lien, a contractor must register it on the title to the property where the work was done. To perfect the lien requires the contractor to commence an action and register a certificate of action on the title to the property. There are strict deadlines for the preservation and perfection of liens, typically triggered by either the date of last supply or the publication of a certificate of substantial performance, although the complete framework for the timing of preservation and perfection of liens is somewhat complicated and depends on when the work was actually performed. Once a lien has been perfected, the action by which it was perfected must be set down for trial within two years of having been commenced otherwise the lien will expire (although the legal action itself may continue).

    Key Takeaways

    • The construction pyramid defines who pays whom in a multi-tiered subcontracting system.
    • A subcontractor can hire another subcontractor, creating further layers of the contractor pyramid.
    • Construction liens protect subcontractors and suppliers by securing payment for labour and materials.
    • Perfecting a lien requires following strict timelines and procedures, including preservation and registration on the property title.
    • Failure to preserve or perfect a lien can result in the loss of legal protection and an inability to enforce subcontractor rights.

    For subcontractors and contractors alike, understanding subcontractor liens and perfecting a lien is crucial to ensuring payment security. Ontario’s construction lien laws provide essential protections for subcontractors, particularly when a general contractor fails to pay.

    For legal assistance regarding construction liens, subcontractor liens, or contractual disputes, contact our construction lawyers.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Real Estate

    Making Canadian Courts Great Again

    Trump’s upcoming inauguration for our neighbour down south is looming as many of us are still coming to terms with the election results. To say that the election was a controversial and polarizing one is a gross understatement. Canada tuned in, as social media, newspapers, radio stations and everything in between exploded with every tweet, every colourful comment made at the debates, and pieces dug up from the candidates’ past.

    Everyone woke up on November 9, 2016, to the news of Trump’s stunning victory. However, for some Canadians that morning, Trump hit much closer to home. On the morning of November 9, 2016, Judge Bernd Zabel walked into the courtroom wearing a “Make America Great Again” cap before placing it on the bench in front of him. In the same courtroom on that day, he voiced his support for Donald Trump.

    This sparked outrage as the future president-elect has appeared to condone sexual assault on women and threaten various ethnic and sexual minorities, among others. However, more disturbing and problematic is the fact that judges, otherwise seen as the beacons of justice in Canada, are required to be impartial and neutral. One of the underlying values of the Canadian justice system, judicial independence, requires judges to make decisions pursuant to the rule of law absent any political interference. The Canadian Judicial Council provides that “Judges should strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment.”

    The legal community reacted instantly with many calling for Justice Zabel to be disciplined. Justice Zabel quickly apologized the next week – “I wish to apologize for my misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election”. However, just as an apology cannot absolve someone of wrongdoing or undo a contract, it cannot take back words that were said. The action was taken quickly, as Justice Zabel has now been suspended, and can no longer hear cases in court as of December 21, 2016. While Justice Zabel’s future remains uncertain, we know that Canadian courts strive to be better than great.

     

    “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, Human Rights Law

    Oh Canada, Our Home and “Snow-washed” Tax Haven??

    The release of a joint CBC / Toronto Star investigation has made headlines across the world and calls Canada’s tax system into question.

    Most Canadians would argue that Canada’s tax rates are among the highest in the world and that the Canadian tax system is designed to ensure that income earned in Canada is subject to Canadian income tax, whether that income is earned by an individual, a corporation, a partnership, joint venture, or any other form of organization. In the normal course, a Canadian entity earning income in Canada from a business or property is required to report, calculate, and remit income taxes on such income to the Canada Revenue Agency.

    The CBC and the Toronto Star used the term “snow washing” to refer to the use of Canadian corporations and limited partnerships as part of complex offshore money laundering and tax evasion schemes, due to the perception of the legitimacy of such Canadian entities and Canada’s reputation as a “whitelisted, respectable jurisdiction”.  The Toronto Star / CBC investigation identifies the practice, advocated by some other offshore jurisdictions, of non-residents incorporating companies or setting up other entities (such as Canadian limited partnerships) and installing Canadian “nominee directors”.  The Toronto Star article reports as follows:

    “Canada is a new player in the world of offshore companies,” claims the website of a Swiss firm. “Canada is the most preferable destination for compliant tax planning since it has no negative offshore reputation and no association with tax avoidance or evasion. It is by far one of the best neutral jurisdictions, providing offshore benefits without any of the traditional offshore drawbacks.”

    In another article in the series, the Toronto Star states the following:

    Nominee directors are not illegal in Canada, but the secrecy they provide facilitates abuse. The tax haven industry relies on nominee directors to put a legitimate face on companies, masking their real owners and allowing them to evade tax, launder ill-gotten money or bribe corrupt officials.

    Corporate statutes, both provincial and federal, impose duties and liabilities on directors of Canadian corporations.   Directors are regarded as fiduciaries of their corporation, and as such, are required to exercise a duty of care, to act honestly and in good faith, and to ensure that they protect the corporation’s interests.  Other statutes (such as the Income Tax Act), impose other responsibilities on corporate directors.

    The key premise of the Toronto Star / CBC joint investigation is that the opacity of our corporate registry system, whereby it is almost impossible to identify the real owners of companies, creates an environment of secrecy that encourages money laundering and tax evasion.  The Toronto Star articles make the assertion that “[t]he use of nominee directors is a key channel of tax evasion”, and that “[s]ecrecy is at the heart of financial crime”.

    The conclusions reached in the series of Toronto Star and CBC investigative articles, are that, to curb abuse of the system, Canada needs to adopt a more transparent corporate registry system, such as one recently adopted in the U.K., which provides that individuals holding more than 25% of the shares or voting rights in a company are listed on a public database.  In addition, the articles conclude that some structures, such as Canadian limited partnerships, help avoid tax because non-resident owners are not required to file a Canadian tax return.  This is not entirely correct.  Limited partnerships are required to file annual information returns setting out details of their income and the names of the partners who are entitled to such income.

    Tax evasion, avoidance and abuse of our financial, corporate, and legal system are deplorable and certainly have negative repercussions for all Canadian taxpayers.  It is commendable that the CBC and the Toronto Star have undertaken this investigation, exposing the deficiencies in the system and the opportunities for exploitation that such deficiencies create.  We can hope that as a consequence of these articles, the Federal and Provincial governments will act to close loopholes in reporting and accountability and minimize opportunities for abuse.  That being said, it is a maxim of Canadian tax law that taxpayers are entitled to arrange their affairs to minimize tax.  There are many valid and legal strategies that can be implemented by Canadian taxpayers through effective tax planning.

    If you have a tax question or concern, please contact one of our tax lawyers, for a consultation.  If you have any other legal issues, please contact one of our lawyers at Devry Smith Frank LLP.

    By Fauzan SiddiquiBlog, Tax

    Denied Access To Your Child? Here’s What You Need To Know

    Parental Access Denial: Legal Rights and Remedies

    Breaking up, as they say, is hard to do. Where there are children in the equation, the question of a parent’s access to the child can add substantially to the hardship. All too often, the animosity associated with separation leads one parent to deny access to a child, frustrating the other parent’s ability to maintain a relationship.

    In the following, we discuss what a parent who is denied access to their child can do, and provide some context to help make sense of this situation.

    The Importance of Parental Access

    In a perfect world, parents would put aside their differences and cooperate to ensure both parties play an active role in their children’s lives. One way of doing this involves executing a contract regarding custody and access—namely, a “parenting agreement” or “separation agreement.” Such agreements are valid and enforceable when in writing, signed, witnessed, and when both parties have received independent legal advice.

    One helpful resource that can assist families in reaching an agreement is a parenting mediator. A mediator acts as a neutral third party who works to facilitate productive communication between parties, helping resolve issues including child access rights. Mediated resolutions must be voluntarily accepted by both sides. While both legal agreements and mediation come at a price, failing to agree and escalating the conflict can often prove much more costly.

    What Can You Do If You Are Denied Access to Your Child?

    If parents cannot come to an agreement without assistance, or if the agreement is not being observed, they often turn to the courts and to legal professionals.  This is where the experienced family law practitioners at Devry Smith Frank LLP enter the fray.

    To be clear, there are circumstances where a parent is justified in denying the other parent access.  This will be the case where a parent presents a protection risk to the child(ren) – for example, where an access parent is abusive, does not maintain a safe accommodation for the child(ren), or is intoxicated.  However, where access is denied without justification, a parent can seek remedies from the court.

    Legal Remedies for a Parent Denied Access to a Child

    In applying any remedy, the courts’ paramount consideration is the “best interests of the child.” The courts will not enforce or approve a parenting agreement unless it aligns with this principle. While the best interests of the child are not precisely defined, courts must consider specific factors—including facilitating the child’s access to the other parent.[1]  

    Generally, the courts frown upon parents who obstruct the other parent’s access to their children. In extreme cases, courts have even transferred custody from the parent denying access to the parent who has been wrongfully denied access.

    Where a parent is unable to exercise access, and the other parent is preventing access from taking place, the parent can bring a motion seeking a court order to enforce their rights. In Ontario, courts have awarded compensation to a parent denied access, covering the legal costs incurred while trying to exercise parental access rights.

    Breach of Access and Contempt of Court

    In exceptionally rare circumstances, a parent denied access may also seek an apprehension order.  The parent, or the police, are thereby empowered by the court to apprehend the child.  It must be emphasized that, given the immense psychological harm a child could be exposed to, a court is extremely unlikely to consider this to be in the best interests of the child(ren).  Indeed, such orders are all but unheard of.  Instead, a court asked to make this order may give the parent denying access another chance to comply, perhaps under threat of consequences for remaining in contempt of an order.

    Balancing Access Rights with Legal Protections

    Ultimately, Courts must balance the desire to ensure parents’ access and respect for court orders, with the desire to avoid exacerbating tension and financial trouble within families.  Overlaying all other considerations, are the best interests of the child.  They therefore tend to gradually raise the stakes, escalating from warnings and compensatory cost awards to the more severe contempt orders where all else fails.

    When faced with a denial of access, it is important to remain composed and resist taking matters into one’s own hands.  Emergency motions are available in certain circumstances.  If there is a genuine risk of harm, the police are also available in the immediate term.  Longer term solutions, however, will require engaging with the courts.

    Navigating parental access denial can be legally complex and emotionally overwhelming. If you are facing this situation or any other family law issue, Devry Smith Frank LLP is here to help.

    ______________________________________________________________________________________________________________________________

    [1] Among other factors, the courts consider the ability of those seeking access to the child to act as a parent.  An integral part of acting as a parent is the ability to facilitate access to those for whom the child has “love, affection and emotional ties”.  In the vast majority of cases, this includes both parents.

    By Fauzan SiddiquiBlog, Family Law

    Caught My Spouse Recording/Spying On Me!

    Toronto area family law attorney John P. Schuman was recently asked the following question: “I came home to notice my wife was recording/spying on me with her laptop though she wasn’t around. I was able to notice because the webcam light was on. Is this a crime?”

    Yes. Intercepting any form of conversation, to which you are not a party is a breach of section 184 of the Criminal Code of Canada and possibly other sections, depending on what your ex records.

    And, recording conversations usually will not help you in family court. While it may not be one of the top 10 biggest family court mistakes, breaking the law will not make a judge like your ex. In addition, except in extreme circumstances where the evidence is necessary to protect a child from harm, illegally obtained evidence is not admissible. Judges only pay attention to admissible evidence, so even if your ex does record something that she thinks helps her case, chances are the judge will not even look at (or listen to) it.

    Judges also really hate it when one parent tries to interfere with the other parent’s time with the children, or even worse, tries to prevent the children from having a relationship with the other parent. If your ex was trying to record your time with the kids, that will come off really badly – the only worse thing your ex could do would be to “interview” the kids about the child custody issues and record that conversation. No good comes from putting your kids in the middle in Family Court.

    Chances are, unless your are a lawyer, you will not know the Rules of Evidence, or the specifics of the Criminal Code. That is why it is good to get legal advice for your specific situation.

    If you are in a similar situation, please contact our family lawyers. If you would like to contact John Schuman directly or to find out more about his practice, click here.

    By Fauzan SiddiquiBlog, Family Law

    Small Claims Court Awards Double the Standard in Costs for Unreasonable Behaviour

    As a plaintiff, losing your court case is bad. Having to pay thousands of dollars for the defendant’s legal fees is much worse.

    Part of the strategy in any litigation proceeding is weighing what your case is worth versus how much you might spend to prove that case. From a financial perspective, there is not much point proceeding to trial over a $1,000 loss if it will cost you $5,000 in legal fees by the end of trial. Many people believe that the loser in any court case automatically has to pay for the winner’s legal fees. This is partially true, but also misleading. In a typical court case, it is exceptionally rare to get 80-90% of your legal fees paid for, let alone 100%.  The amount of the winner’s legal fees that must be paid for by the losing party is called a “costs award”. Considering how much you will incur in legal fees plus the cost of the other side’s legal fees is something about which  any prudent lawyer would advise his client.

    In Small Claims Court, costs awards work differently. The Courts of Justice Act places a cap of 15% of the amount claimed (up to $25,000 which is the limit of the Small Claims Court), plus disbursements, such as travel expenses. In rare circumstances, the judge can award additional costs to penalize a party for unreasonable behaviour. For a more detailed breakdown on how Small Claims Court works, there is helpful information available from the Ministry of the Attorney General.

    Barton v Bowerman is one those rare circumstances where the judge awarded more than the 15% limit. The plaintiff was hired by the defendant to be an administrative assistant at their accounting firm, subject to a six month probation period. Within weeks of starting her new position, the plaintiff was fired. She sued the defendant for $25,000 claiming she was owed pay for the full six months of her probation. The court noted that the issue was not whether the plaintiff was wrongfully dismissed, but whether she was entitled to more pay in lieu of notice than the two weeks’ pay the defendant gave her. Given her six month probation period, she was not.

    In the costs decision, the judge awarded the defendant-employer $7,500.00 in costs plus $500.00 in disbursements. This is double the traditional 15% limit. In his written reasons, Deputy Judge Lyon Gilbert wrote the plaintiff wasted a full day of the court’s time exploring evidence regarding just cause for her dismissal even though the defendant stated she was fired without cause. The plaintiff also amended her claim to include claims under the Human Rights Code, but never gave any evidence to support these claims. The defendants also made an offer to settle one year before the trial which would have given the plaintiff a better result than was obtained at the trial.  The plaintiff did not accept this offer. The plaintiff was also a sophisticated litigant: she had practiced as a paralegal and was represented by a retired litigation lawyer. All of these factors point to the conclusion that there was no reason for the plaintiff to have dragged out her issue as much as she did. You can read about the full costs award here.

    This decision highlights the importance of presenting a clear case for the court to consider. While you may want to advance every possible cause of action in your claim, without the proper evidence to back up your claim, this could create a very costly detriment. While there are several self-represented litigants who are able to successfully argue their claim in court, a lawyer may be able to argue a small claims file in less time and for less money than one might expect. If you would like to discuss your small claims file, a member of the Devry Smith Frank LLP team would be pleased to assist you.

    By Fauzan SiddiquiBlog, Employment Law

    Off-Duty Conduct: Can you be Terminated over Tweets?

    Toronto Arbitrator Elaine Newman confirmed that an employee can be dismissed for off-duty conduct. On November 12, 2014, the Ontario Labour Relations Board upheld the City of Toronto’s termination of Matt Bowman, a firefighter with 2.5 years of service, for off-duty misuse of social media.

    Bowman’s Twitter account, which included a picture of him in a Toronto Fire Services (TFS) uniform, featured multiple offensive tweets. Some of his tweets, later published in the National Post, were deemed sexist and discriminatory.

    “Reject a woman and she will never let it go. One of the many defects of their kind. Also weak arms.”

    “I’d never let a woman kick my ass. If she tried something I’d be like hey! you get your bitch ass back in the kitchen and make me some pie!”

    “The way to a woman’s heart is through anal.”

    The Employer’s Response

    Upon discovering the offensive tweets, the employer suspended Bowman with pay pending an investigation. Bowman provided a letter of apology and later completed sensitivity training. However, during the course of the employer’s investigation, additional tweets were uncovered, containing remarks that were found to be racist, sexist, and derogatory towards various groups, including ethnic minorities, homeless individuals, and persons with disabilities.

    The employer argued that Bowman’s conduct violated human rights policies, social media guidelines, and harmed the reputation of Toronto Fire Services (TFS). This was particularly concerning as TFS had recently launched a diversity initiative aimed at recruiting more female firefighters and increasing representation from Toronto’s diverse population.

    Applying the Millhaven Fibres Test for Off-Duty Conduct

    Arbitrator Newman applied the Millhaven Fibres test, established in Re Millhaven Fibres Ltd. v. Atomic Workers Int’l Union, which sets out the conditions under which an employer can justify dismissal based on off-duty conduct. The employer must prove at least one of the following:

    • the conduct of the employee harms the employer’s reputation or product;
    • the employee’s behaviour renders the employee unable to perform his duties satisfactorily;
    • the employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
    • the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the employer and its employees;
    • places difficulty in the way of the employer properly carrying out its function of efficiently managing its works and efficiently directing its working forces.

    Arbitrator Newman confirmed that the test requires an employer to prove any one of the above-noted criteria.

    Newman noted that, over the past 4 decades since the Millhaven test was devised, cultural awareness and sensitivity in Canada has grown, along with the diversification of its communities and workplaces. As such, she expanded the fourth branch of the Millhaven test above to include a serious breach of human rights policies or the Human Rights Code.

    The question to be asked is this: Would a reasonable and fair-minded member of the public, if apprised of all the facts, consider that Bowman’s continued employment would so damage the reputation of the employer so as to render that employment untenable?

    Arbitrator Newman considered Bowman’s apology and candour at length. She found that he was not forthcoming, disclosed information selectively and was not fulsome in many of his responses. She also found that he was not candid or cooperative during the employer’s investigation.

    Arbitrator Newman also considered the severity of Bowman’s conduct: she found that Bowman’s comments violated a number of fundamental workplace policies, that he promoted forms of discrimination intentionally among his followers and recklessly made this promotion available to the general public. She noted that his conduct was not an isolated incident, but that it was a course of conduct and took place over a period of about two years.

    Arbitrator Newman found that actual damage to the employer’s reputation was caused by the National Post articles and their fallout and found potential damage has been caused to the employer’s ability to carry out its work, which includes implementation of its diversity initiative.

    In determining that dismissal was the appropriate penalty, in this case, Arbitrator Newman stated, “[Bowman] does not absolutely accept the proposition that his comments were offensive. He has said, repeatedly in his evidence, that ‘he can see how someone might consider them offensive.’ His words ring hollow. They do not reflect a real appreciation of the degree to which his comments offend.”

    The Arbitrator held that Bowman’s conduct harmed the reputation of his employer and impaired his ability to fulfill the complete range of responsibilities of a firefighter. She stated, “The job involves more than attending at a fire, or attending as the first responder when someone calls 911 for a medical emergency. It involves more than performing life-saving interventions that he has learned and practiced. The other part of the job, the part that I am not convinced he can perform to satisfaction, is the part that requires him to conduct himself in a way that brings honour to the uniform. I have to wonder if a deaf person, a woman in labour, a homeless person, a member of a visible minority group, apprised of his comments, would welcome this man into their home in a time of need.”

    Arbitrator Newman’s Award may be found here.

    What should employers take from this decision?

    • the importance of implementing and maintaining human rights and social media policies in the workplace
    • off-duty breaches of employers’ human rights policies or the Human Rights Code may be found to harm the employer’s reputation and be grounds for just cause dismissal
    • certain types of employees, for example, firefighters, nurses and police officers may be held to a higher standard than other employees whose work is less intimate and does not involve serving the public or being in a position of trust

    Be careful what you tweet!

    Contact a member of the Employment Law group at Devry Smith Frank LLP to develop and update your workplace policies, including human rights and social media policies.

    “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, Employment Law