If I Don’t Have Money, Will I Lose in Family Court? Often when spouses separate, one spouse leaves with much greater access to money than the other. Then that spouse wants to hold on to his or her money after separation, so doesn’t want to be cooperative, knowing that his or her ex does not have the money to go very far in Family Court, and so will just have to take what is offered and give up what he or she is entitled to receive. There are a lot of good reasons to avoid going to Family Court. The cost of going through the process is a big one. Family Court costs exponentially more than mediation, arbitration or collaborative practice. But, where one spouse has all the money, he or she may not see any reason to choose a less expensive alternative when his or her ex cannot afford to go to court. Going to Family Court to enforce your rights usually means hiring a lawyer (you have to live in poverty to get Legal Aid, and Legal Aid only covers limited legal issues) and if one spouse cannot afford that, then that spouse may not even be able to make it in front of a judge to get what is fair. Although, often all it takes is getting in front of a judge who is concerned that only one spouse has money for the other spouse to want to negotiate, go to mediation or otherwise stay out of court. When one spouse has found the money to start court proceedings, his or her ex may worry that there is the money to continue them. Starting court proceedings involves a lot of steps, which can make it expensive. So, an uncooperative spouse may choose to be cooperative to avoid spending more on a court case that he or she may lose, and uncooperative spouses may find that they lose a lot. Fortunately, there are some options for people with limited funds to get the legal help they need to go to court: Ask for money from friends and family. This is the most common way people get money for their divorce or to go to Family Court. Often, this money will be a gift, or if it is a loan, then the repayment terms are very favourable. Hire a lawyer on a limited scope retainer. There is a lot more information at the link, but essentially this means hiring a lawyer to give advice only or do one specific task, rather than dealing with every part of the file. The spouse with limited funds then can chose what he or she is going to have the lawyer do and keep control over how much it will cost. Ask a judge for an advance on monies owed. In many cases, particularly when it comes to property division in a divorce, it will be evident right from the beginning that one spouse will owe the other some money in the end. Where the spouse who needs money is the spouse who will be receiving the money, then it is possible to ask for the spouse with the money to pay at least some of it immediately. If the spouse with the money won’t agree to do this, Judges can order the payment on a motion where it is clear that one spouse will owe money. However, this is a motion for “partial summary judgment”, which makes it a little technical, so it is best to speak to a lawyer. Ask a judge for “interim costs and disbursements.” Rule 24(18) of the Family Law Rules says that a judge can order that a party to a Family Court case pay an amount to another party to cover some or all of the expenses for carrying on the case. Judges may do this where it is necessary to “level the playing field” or where one party’s behaviour is so unreasonable it is clear that party will end up paying costs in the end anyway. Get a “Divorce Loan” or a Litigation Loan. These can be expensive loans, but they may be worth it to a spouse who needs to go to court to get anything from their ex. Also, it is often possible to get support orders, especially child support orders, early on in the case. These are for temporary support and are meant to last until there is a trial or settlement. They may not get the support amount exactly right, but they can provide some necessary cash flow to help with Family Court. With the court making automatic orders for disclosure right at the start of the case, the parties are required to provide at least basic financial disclosure within 30 days of the start of the court proceeding. That allows for at least an estimate of what support will be payable. Only unreasonable Family Court litigants will not settle some or all of the support issues. Judges may punish a party for being unreasonable by having that party pay the legal fees for the other party. All of the above options that require a court order can be a little tricky and technical. It is best to at least book a consult with a respected family law lawyer to understand what option is best for you and how to pursue it. Still, there is no denying that court is very expensive. It is the only dispute resolution process that one separated spouse can force the other into. For that reason, and others, some judges struggled between allowing each party the full opportunity to present his or her case the way he or she sees fit, and dealing with matters quickly and potentially leaving the impression that the court was not listening or did not care. Parties with more money can ask for more opportunities to pursue more steps, bring more motions, present more arguments, and generally litigate more aggressively than parties who are trying to do their case on a tight budget. In addition, where judges believe a settlement may be possible, there may be repeated settlement conferences, which one party can use to financially exhaust the other – looking ready to settle but just really trying to multiply the number of court appearances. Many Family Court cases are wars of economic attrition. The party that can stay in the fight the longest can take advantage of the other party’s need to “get out” to leverage a favourable settlement. Or, the party with money can force on a trial, which will be extremely expensive, knowing the other party cannot afford to have a lawyer assist and so the party with less money either has to settle for a reduced amount, or face the prospect of losing at trial because he or she does not know how to conduct a trial, or the laws and rules that apply. Of course, none of this matters when spouses want to work toward a fair arrangement after separation. But parties who want that should not be in Family Court in the first place. When things are nasty enough to go to court, each spouse really should speak to a lawyer about the financial situation on both sides and what that means for what strategy will work best for that spouse. “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 situations and needs.” By Fauzan SiddiquiBlog, Family LawDecember 7, 2022August 28, 2023
The Doctrine of Knowing Receipt: How a Third Party can be Liable for Receiving Proceeds of Fraud Picture this: you are a victim of fraud. Understandably, you want to find out who ultimately received the money, and get it back from them! You trace the funds to their ultimate recipients, who claim they’re innocent. They say they did not know that the funds were misappropriated as a result of a breach of trust; and they say they were a stranger to the fiduciary relationship that resulted in the breach. Now what? When a third party receives proceeds of fraud or trust property for their own benefit, and are enriched at the expense of a beneficiary, victims can sue to recover the property in the possession of the third party under the law of “knowing receipt”. Under the doctrine of knowing receipt, a recipient of defrauded funds may be liable to return them where he or she receives the funds for their own benefit, and has actual or constructive knowledge of facts which would put a reasonable person on inquiry, but fails to inquire into the possible source of the funds.[1] Liability for knowing receipt of defrauded funds and property is “restitution-based,” which is concerned with correcting the unjust enrichment of one party to the detriment of another.[2] In order to establish liability under the doctrine of knowing receipt, the victim must satisfy the court of two things: a receipt requirement and a knowledge requirement. Receipt Requirement To satisfy the receipt requirement, the third party must have received and become charged with some portion of the trust property. In other words, they must have received the property in his or her own right, and must have received the property beneficially, thus becoming enriched at the plaintiff’s expense.[3] As such, merely receiving or possessing the funds or trust property without enjoying its benefits is not sufficient to satisfy the receipt requirement. Similarly, a third party holding misappropriated funds for another party as an agent does not provide for a cause of action in knowing receipt.[4] Knowledge Requirement In addition to the receipt requirement, one must prove that the third party had a certain degree of knowledge about the breach of trust to justify liability.[5] Historically, the jurisprudence has been inconsistent on whether a third party needs to have actual or constructive knowledge about the possible breach of trust. Case law such as Gold v. Rosenberg, [1997] 3 S.C.R. 767 have indicated that requiring constructive knowledge is best suited for the restitutionary basis of a claim in knowing receipt.[6] Constructive knowledge is understood to mean “knowledge of facts sufficient to put a reasonable person on notice or inquiry,”[7] and liability arises “where the recipient fails to make proper inquiry in circumstances where an honest and reasonable person would realize that the funds transferred were from a suspicious or improper source.”[8] Constructive knowledge is a lower threshold, and is easier to prove from an evidentiary perspective.[9] Some courts have ruled that even if the property was received innocently and without knowledge, the recipient must return any property that they still hold after they learn of the fraud.[10] Other cases have suggested that an innocent party who subsequently learns of a fraud will be required to return its proceeds only where no juristic reason exists for them to retain the funds.[11] Taken together, where no juristic reason exists for an innocent party to retain proceeds of fraud, that party will be required to return the funds regardless of the timing of their knowledge of the fraud. However, where there is a juristic reason for enrichment (e.g. the return of investment or repayment of a loan), an innocent party may not be required to return the funds to a defrauded party notwithstanding the existence of a fraud, unless they had a duty to inquire about the bona fides of the payment. Conclusion The doctrine of knowing receipt can be a powerful tool in the context of complex fraud and offers a way to hold third parties liable for receiving funds following a breach of trust. If you have any questions about knowing receipt or commercial litigation in general, please contact Graeme Oddy at 416-446-5810 or Graeme.oddy@devrylaw.ca “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 situations and needs.” This blog was co-authored by student-at-law, Abby Leung [1] Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 SCR 805 at para 23. [2] Ibid at para 49. [3] Gold v. Rosenberg, [1997] 3 S.C.R. 767 at para 40. [4] Air Canada v. M&L Travel Ltd., [1993] 3 S.C.R. 787 [Air Canada]. [5] Gold, supra note 3 at para 42. [6] Ibid, at para 45. [7] Citadel, supra note 1 at paras 48-49. [8] Holmes v. Amlez International Inc., 2009 CarswellOnt 6595 at para 7 [Holmes]. [9] Ibid. [10] Ibid at para 12. [11] Sarhan v. Chojnacki, 2012 ONSC 747 at para 28. By Fauzan SiddiquiBlog, Commercial LitigationNovember 30, 2022June 10, 2023
More Homes Built Faster Act, 2022 The Ontario provincial government has introduced new legislation in the form of the More Homes Built Faster Act (Bill 23) to support Ontario’s newest Housing Supply Action Plan. Bill 23 is intended to provide the groundwork to increase the housing supply and affordable housing options for Ontarians by getting 1.5 million homes built over the next 10 years. It boldly does so in a number of very significant and controversial ways. The highlights the Bill 23 include: The Planning Act The most significant changes to the Planning Act will limit/extinguish the appeal rights of third parties, including upper-tier municipalities which are not approval authorities for official plan amendments. Whereas at present persons or public bodies who participate in the planning approvals process enjoy a right of appeal with respect to a zoning by-law, official plan, consents, and minor variances Bill 23 would restrict such rights of appeals to public bodies and “specified persons” (public utilities, operators of railway lines, and telecommunications providers). This change, clearly aimed at preventing NIMBY appeals, will be huge for neighbours and residents’ associations. It will be interesting to see if this will lead to increasing pressure on municipalities to participate in appeals of development applications which face neighbourhood opposition. This could have a significant impact on the caseloads of the Ontario Land Tribunal (OLT) and the Toronto Local Appeal Body. It should also increase the significance of local Committees of Adjustment as they may now be the only opportunity to oppose a project. Importantly this provision has retroactive effect and will nullify appeals where a hearing on the merits has not been scheduled before October 25, 2022. Bill 23 contains other consequential changes including: exempting pits and quarries from the two-year moratorium on applications to amend official plans or zoning by-laws. This is a huge, hard-fought, win for the industry; allowing the Minister of Municipal Affairs and Housing to make amendments to official plans where the Minister is of the opinion that a plan will adversely affect a matter of provincial interest; allowing up to three residential units in a house to be permitted “as of right”; revising the formula (recently introduced by this same government) for determining the amount of a community benefit charge (formerly known as a section 37 benefit) that may be imposed by a municipality on new developments. Municipalities will now have to revise their recently passed section 37 by-laws to incorporate this cap on benefits chargeable to developers; making changes to the provisions of section 41 to exempt residential development of up to 10 units and a land lease community home from site plan control. Exterior design is also removed as an element of site plan drawings. Given the degree to which some smaller municipalities rely on site plan control as a way of regulating specific development this could represent a significant change; revising parkland dedication requirements by removing that requirement for non-profit housing and the development of up to three residential units in a house. Moreover the timing of the calculation and the calculation of the maximum rate (alternative rate/hectare and the cash-in-lieu) will be changed in ways that lessen the ask from municipalities. Bill 23 will also permit owners to propose portions of their land, including encumbered lands, for parkland conveyance as opposed to having to rely on the determination of the local municipality. It will also force municipalities to spend at least 60% of monies collected for parkland purposes at the beginning of each year; and amending section 51 by removing the requirement for a public meeting on subdivision applications. Conservation Authorities Act Bill 23 proposes to amend the Conservation Authorities Act to greatly reduce the ability of Conservation Authorities to regulate development activity by removing their ability to comment on development applications and to require permits for projects approved under the Planning Act. Moreover, the Minister will have greater powers to make exceptions for development applications. Development Charges Act, 1997 Bill 23 proposes to make various amendments to the Development Charges Act, 1997. New sections are added to fully exempt affordable residential units, non-profit housing developments, and inclusionary zoning residential units from development charges. The Development Charges Act would also be amended to require a reduction in the maximum development charge that could otherwise be charged for the first four years a development charge by-law is in force. These reductions would be applicable to development charges imposed pursuant to development charge by-laws passed on or after June 1, 2022. Under Bill 23, rental housing development charges would be reduced for residential units intended for use as rented residential premises by 25% for premises with three or more bedrooms, 20% for two-bedroom units, and 15% for all other residential units. The Development Charges Act would also be amended to require municipalities to spend and/or allocate at least 60% of the monies in reserve funds for water supply services, including distribution and treatment of services, wastewater services, and treatment and services related to highways. City of Toronto Act, 2006 Under Bill 23, the City of Toronto Act, 2006 would be amended to give the Minister the power to make regulations that impose limits and conditions of the municipality’s power to prohibit and regulate the demolition and conversion of residential rental properties under Section 111 of the City of Toronto Act. Ironically the City has always relied on this cherished ability to protect tenants and rental, particularly affordable rental, units. Ontario Land Tribunal Act, 2021 Traditionally, in the interests of encouraging public participation in the planning process, the OLT has not awarded costs to unsuccessful parties except where the conduct of such parties has been patently unreasonable and/or vexatious. This could change as Bill 23 will amend the Act to specify that the OLT may order an unsuccessful party to pay the costs of a successful party. Depending on how the OLT decides to implement this, and given how expensive hearings can be, opponents of development projects may be very wary of appealing those projects. Additional proposed changes to the Ontario Land Tribunal would include clarifying the Tribunal’s powers to dismiss appeals due to unreasonable delay and failure to comply with a Tribunal order and prioritizing certain classes of proceedings. Changes to Consumer Protection and Land Speculation If passed, Bill 23 would further strengthen consumer protections for new home buyers by doubling maximum fines for unethical builders and vendors of new homes who unfairly cancel projects or terminate purchase agreements under the New Home Construction Licensing Act. These fines would increase from the existing $25,000 fine to $50,000 with no limit for additional financial penalties. These changes would also assist the Home Construction Regulatory Authority to use funds from these penalties to provide funds back to affected consumers which would make Ontario the first jurisdiction in Canada to provide these funds to consumers. Further changes to Ontario’s New Home Construction Licensing Act would also involve cracking down on land speculation as home builders are taking extended periods of time to complete their planning applications which delays home creation. Bill 23 would allow Ontario to work with industry partners to consult on the issue of land speculation and to determine whether regulatory changes under the New Home Construction Licensing Act are needed to address the issue. Ontario Heritage Act Bill 23 will significantly change the provisions of the Ontario Heritage Act by, among other things: requiring that “listed” properties meet prescribed criteria for determining whether a property is of cultural heritage value. Such criteria already exists with respect to the designation of heritage properties pursuant to Ontario Regulation 9/06 and new or different criteria may be developed by way of further regulation; imposing time limits on how long a property can be listed. Municipalities will now have to initiate the designation process for listed properties within 2 years of the listing. Otherwise a property will be delisted and cannot be listed again for a period of 5 years. The process of designation can be an expensive one for municipalities given the requirements for notice and the possibility of appeals; restricting the ability of municipalities to designate a property in response to a development application. If the property is not already listed it cannot be designated in this circumstance; and adding additional requirements for the establishment of heritage conservation districts. Those criteria will also be established by regulation. As noted above, Bill 23 has the potential to greatly change the landscape of development approvals. To better understand the changes and the transition provisions around this subject please contact one of the following municipal and development lawyers today! Marc Kemerer–marc.kemerer@devrylaw.ca, 416-446-3329 Adam V. Grossi–adam.grossi@devrylaw.ca, 416-446-5094 David S. White–david.white@devrylaw.ca, 249-888-6633 Christopher W. Statham–christopher.statham@devrylaw.ca, 416-446-5839 Larry W. Keown-larry.keown@devrylaw.ca, 416-446-5815 Louis A. Gasbarre–louis.gasbarre@devrylaw.ca, 416-446-3318 By Fauzan SiddiquiBlog, Construction LawNovember 8, 2022June 25, 2023
Student Rights During a Teacher Strike At the time of this article, Ontario’s education workers are on strike and Ontario’s public schools are closed to students. It is important to note that teachers (licensed teachers) are not on strike and are not doing anything to close the schools. Ontario’s school board’s have decided that they cannot allow students into the physical school buildings without the education workers present. This is because education workers perform many essential tasks in schools. Some are custodians, who keep the buildings clean, heated and maintained. Others are educational assistants and child and youth workers who provide critical assistance to students with special needs that allow those students to attend schools. The presence of early childhood educators (ECEs) was factored into the determination of how large kindergarten classes can be, so the size of some classes is too large for a teacher alone to manage safely. Other workers provided supervision of students, prevent bullying, or tend to other tasks that are necessary for schools to operate. With these (non-teacher) education workers providing services that are so critical to the functioning of the education system that the Ontario Government is trying to use the Notwithstanding Clause to take away their collective bargaining rights, people are asking about what about children’s right to an education in Ontario? Is there a right to an education in Ontario? Children in Ontario do not have an absolute right to an education, or to any particular standard of education. The Canadian Charter of Rights and Freedoms does not give an explicit right to education. Neither does the Ontario Human Rights Code. Article 28 of the UN Convention on the Rights of the Child creates a right to a primary education, but does not specify what exactly that means or how it will be delivered. Canada ratified that convention, but the Canadian Constitution gives power over education to the provinces. The Ontario Government could make education a right, but has chosen not to do so. This is because there are a lot of differences of opinions of what a child’s education should look like. Why hasn’t the Government of Ontario done more to make education a right? There is no universal agreement over what a right to an education would look like, which means creating such a right would be difficult or impossible because of the controversy it would create. Some people want their kids to go to religious schools, other want their children to go to schools that teach particularly values or emphasize particular subjects, other parents want to homeschool their children, others want schools that are free to teach kids as they see fit without government interference. Consequently there are no absolute standards for an education or an absolute requirement to follow a particular curriculum. As illustrated by how private schools work in Ontario, there is no minimum standard for a school education in Ontario. It is only or students to get an Ontario Secondary School Diploma (OSSD), which is coveted around the world, that their school does need to meet some curriculum and evaluation requirements. But there are private high schools that do not grant OSSDs. Over the pandemic, and with the introduction of online high school courses, the Ontario Government has been clear that it going to school does not necessarily require going into a school building. Are Child Legally Required to Go to School? While there is no right to an education, section 21 of the Education Act creates a legal requirement that children over the age of six attend school full-time or be registered for home schooling by parents who agree to take on the task of providing an education (although no particular education) themselves. Education is more of a responsibility for students than a right. However, there is a lot of flexibility as to how students can receive their education – they can get it in a school, on-line, or at home. Students Do Have Rights in School – That Is Part of the Current Problem There are some rights for students in the public education system. When any school or school board agrees to provide education to students, it is legally required to give every student, to the extent possible, equal access to the curriculum and the other services provided by the school. It must not discriminate and give some students preferential access or educational opportunities over other students. In other words, schools cannot discriminate when providing an education to students. Each student has an absolute right to have the same access to school services as other students. That means that schools cannot decide to stop providing special education services due to a labour disruption. They cannot say that accommodations for students with disabilities will be withdrawn until the unions and the government reach an agreement. If you look carefully at the labour actions that teachers took during their work-to-rule, they were not taking away services that are necessary for students with special needs to succeed in school. The labour actions have the same negative impact on all students, those with special needs and those without. Students continue to be given equal access to public education services in Ontario. Since so many education workers provide the essential services that students with special needs require just to go to school, they cannot do much short of striking to apply pressure during contract negotiations. If they were to withdraw or reduce services, they would disproportionately affect students with disabilities, or who otherwise have special needs, and that would be discriminatory and a violation of the children’s rights under the Canadian Charter of Rights and Freedoms and Ontario’s Human Rights Code. It may be that as a result of changes in the Ontario Government’s policy, or funding priorities, there are fewer, or poorer, special education services available to students with special needs – be they a disability, or economic disadvantage, or being from a member of a group that has been historically disadvantaged or unfairly treated. If these students with special needs are not allowed the same ability to attend school and receive the education that they need to fulfill their potential, then they will be discriminated against. There will be human rights cases against schools, school boards and the Ontario Government to ensure those disadvantaged children are as able to access the Ontario Curriculum and other aspects of the education system as every other child. The labour disruptions should not affect anti-bullying programs either. This is because bullying puts students at a disadvantage in the education system. It can impair the victim’s ability to learn. It can threaten their security while they are at a place that the government requires them to be. Bullying can truly be discrimination that gets in the way of an education. Bullying also impairs a child’s development. The Ontario College of Teachers requires its members to promote the healthy development of students. That is why during their labour talks, teachers did not take actions that promote, encourage or allow bullying to grow within schools. Education workers are not government by the Ontario College of Teachers, but they still should not promote bullying as part of a labour action. Whenever educators do not do enough to combat bullying, there’s a good chance that will result in a violation the human rights of students in their schools. What Could the Strike Mean for Students and Their Education? Ontario Public Schools do have some stringent standards that they have to meet, which has made Ontario’s public schools amongst the best in the world. Only the Scandinavian Countries consistently perform better. Those standards are the result of the strict regulation, guidance, required educational practices, research, and resources that the Ontario Government puts into the public education system. On behalf of the people of Ontario, the Ontario Government creates the standards that Ontario students have come to expect from the public education. In fact, it is those standards that the education workers’ union (and the teacher’s union before them) are saying they are fighting to protect. The people of Ontario have expectations for the quality of education found in public schools and, presumably, if any Government does not meet those expectation, it will be voted out. These government education standards may mean that some remedial steps must be taken to make sure that students have been given the necessary education, particularly for high school. So, there may be a need to add school days into the summer to so that students attend for the expected number of hours to get their high school credits. Mandatory, EQAO testing, may be rescheduled until after the labour disruption concludes. Extracurricular programs may be replaced by additional instruction on core subjects to make sure students cover the required material. Public schools may have to put other measures in place to make sure the education delivered to public school students meets the required standards. Conclusion The constitution and human rights law in Ontario do not give students a right to an education, but it does set requirements for how education is provided to Ontario Students. If your child is being denied the same opportunity to succeed in school that every other student has, then it is time to speak to an Education Lawyer about how to protect your child and make sure he or she gets the education every Ontarian deserves. If you need help with that, email us, or call 416-446-5847 to set up an appointment. For more information about Ontario Education Law, and other education law issues, such as assistance for students with special needs and discipline such as academic sanctions, suspensions and expulsions, check out the Education Law section of this website. “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 situations and needs.” By Fauzan SiddiquiBlog, Education LawNovember 4, 2022July 7, 2023
Divorce and Support Payments: Living in Canada But Married, or Even Divorced Elsewhere? Just because you were married elsewhere, or maybe even have a divorce from a foreign country, does not necessarily mean that our Courts in Canada will not hear your matter. Take for example, a recent case in 2017, where the Court of Appeal[1] handled a case where a Canadian citizen (husband) was married to a person who resided in China (wife). The wife had never come to Canada; however, the couple did have one child born to the marriage when the husband lived in China briefly. The wife sought a divorce in Ontario including spousal support, child support and custody of the child pursuant to the Divorce Act. She further requested equalization of the net family property pursuant to the Family Law Act. In response, the husband filed for divorce in China, seeking a divorce, custody and equalization or property. In response, the wife brought a motion in an Ontario court requesting temporary child support which was granted. The husband then requested that his application should be heard in China. The Ontario court agreed and allowed the application to move forward in China. The underlying reasons were that the application involved custody, access and support; therefore, the hearing should be pursued in the jurisdiction of the matrimonial proceeding. Custody and a divorce were granted by the court in China to the wife. However, the issue of support and equalization were left to be brought forward in the Ontario courts as the husband did not disclose his proper financial information and all his financial holdings were in Ontario/Canada. The Court of Appeal of Ontario was required to determine two questions: Does an Ontario court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction? Does an Ontario court have jurisdiction under the Family Law Act to determine the issue of child support after a foreign court has issued a divorce? The Court of Appeal held that Ontario Superior Court has jurisdiction to determine the issues of child support and equalization of net family property pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). However, there is no jurisdiction under that legislation, or otherwise, for the Superior Court to order spousal support. From this case comes an important question – Will a foreign divorce be recognized in Canada? The Canadian courts have stated that divorces obtained in other countries will be held valid if the laws of the parties’ domicile (at the time of their divorce) would have recognized a foreign divorce.[2] In Canada, s. 22 of the Divorce Act states that a divorce granted by a foreign jurisdiction will be recognized in Canada if either former spouse was ordinarily resident in that foreign jurisdiction for at least one year immediately preceding the commencement of the proceedings for the divorce. In looking for a divorce, that is also a requirement. At least one of the parties has to be considered a “resident”. For more information on what that may look like, contact our Family Law Department at Devry Smith Frank LLP. What about remarriage? Part of the process for authorization to remarry in Canada involves obtaining a legal opinion from a lawyer. The lawyer must give reasons why the divorce should be recognized in Ontario. If you need help with a foreign divorce being recognized in Ontario, it is worthwhile to discuss your case with a family lawyer in our office. If you have more questions related to Family Law, please visit our website or contact Katelyn Bell at Devry Smith Frank LLP to discuss any questions regarding your specific family law situation and your options. She can be reached at 416-446-5837 or Katelyn.bell@devrylaw.ca. This blog was co-authored by Law Student, Kathleen Judd. “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 situations `and needs.” [1] Cheng v. Liu, 2017 ONCA 104 [2] Zhang v. Lin, [2010] A.J. No. 755, 2010 ABQB 420, 500 A.R. 357, at para. 53 By Fauzan SiddiquiBlog, Family LawNovember 3, 2022June 10, 2023
The Other Party Won’t Follow our Court Order – What do I do? Book a consultation with us Name Phone Number Email Message Send “Orders are not suggestions” is a common sentiment in family court.In light of the time, money, and effort that is involved in securing a final court order, it is no wonder that someone would become frustrated by the other party’s refusal to comply with its terms.A common question faced by lawyers, is what to do when one party fails to abide by an order – What are the options?One form of legal recourse is to bring a contempt motion, asking the Court to find that the other party is in contempt of the court order. In family law proceedings, motions for contempt are governed by the Family Law Rules. Payment orders may not be enforced by a contempt motion.Being found in contempt is a legal consequence for non-compliance with an order. The goal is to deter individuals who feel that they do not need to comply with some or all of the terms of an order. Parties who fail to comply not only interfere with the court process, but obstruct the course of justice. The consequences for being found in contempt range from fines to jail time. Ultimately, the objective with a finding of contempt is compliance.In determining whether a party should be found in contempt, the Court will consider the following:Was the party aware of the order’s existence at the time of the alleged breach?Did the order clearly and unambiguously state what should or should not be done?Did the party who allegedly failed to comply do so in an intentional way?Was the conduct demonstrated beyond a reasonable doubt? This is in part because findings of contempt are quasi-criminal in nature.It is important to keep in mind that a finding of contempt is a remedy of last resort. The Court found in Hefkey[1] that a contempt finding should be made sparingly and with great caution.In family law cases, the Court will be especially concerned with whether the parties have acted in a way that accords with the children’s best interests. In Jackson[2], The Court noted that a party may be excused for non-compliance if it was objectively in the best interests of the child(ren). The Court also acknowledged the complex emotional dynamics that are involved in family law disputes, and the desire to avoid escalating the conflict further.The importance of complying with the terms of a court order cannot be understated, and the Family Law Rules provide the Court with a range of remedies for non-compliance. That said, the Court will often exercise their discretion to find a party in contempt sparingly, and are hesitant to do so when there are other reasonable options available to send a message that the court order must be followed.If you have more questions related to family law matters, please visit our website or contact Sarah Robus at Devry Smith Frank LLP to discuss any questions regarding family law and your options at 249-888-4642 or sarah.robus@devrylaw.ca.This blog was co-authored by Law Student, Kathleen Judd.“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 situations and needs.” [1] Hefkey v Hefkey, 2013 ONCA 44[2] Jackson v Jackson, 2016 ONSC 3466 By Fauzan SiddiquiBlog, Family LawOctober 27, 2022April 5, 2024
Employers Must Exercise Fair and Reasonable Discretion in Awarding Discretionary Bonuses By David Heppenstall and Abby Leung Bowen v. JC Clark Ltd., 2022 ONCA 614 (CanLII) If an employee is terminated without cause, are they entitled to discretionary bonuses? In Bowen v JC Clark Ltd,[1] two portfolio managers at JC Clark were terminated on a without-cause basis and were each given two weeks’ salary plus $577 in lieu of notice. The managers commenced a wrongful termination action against JC Clark, claiming that they were owed $1.3 million in performance fees. The managers argued that this was a term of their employment for the portion of 2014 that they worked prior to their termination. The trial judge dismissed their claim, determining that they were not entitled to be paid performance fees by JC Clark. The portfolio managers appealed the trial decision. The Ontario Court of Appeal allowed the appeal in part. While the Court of Appeal rejected the appellants’ submissions in relation to their entitlement to performance fees, the Court of Appeal found that the trial judge erred in preventing the appellants from arguing their entitlement to a discretionary bonus. In determining what would be considered fair and reasonable calculation of bonuses given the factual context of the case, the Ontario Court of Appeal awarded each appellant $115,000. In making this decision, the Court of Appeal held that employers should exercise their discretion reasonably and in good faith and that the discretionary nature of performance bonuses does not bring with it unfettered discretion. Background The portfolio managers were first hired by a senior investment professional to manage a hedge fund that he created. The fund was sold to JC Clark in 2012 and as part of the sale, the senior investment professional agreed to allow JC Clark to hire the managers to manage the day-to-day activities of the fund. The investment professional entered into an agreement with JC Clark which provided that for four years after the fund’s sale, the investment professional would receive a share of the management and performance fees earned by the fund. The investment professional then entered into side agreements with the managers where he intended to share 50% of his management fees and 100% of his performance fees with them. Subsequently, the managers entered into employment agreements with JC Clark which provided that “at the total discretion of the Company, you may be eligible for a bonus at the end of each fiscal year depending on factors that include your personal performance and the profitability of the Company.”[2] The fund performed exceptionally well during the first half of 2014 under the managers’ supervision—which was when JC Clark terminated their employment without cause. At trial, the judge dismissed the managers’ claim, finding that the investment professional had paid them the performance fees that they were entitled to for the portion of the year they worked in 2014 and that they were not entitled to the share of performance fees directly from JC Clark. In possessing this knowledge, the trial judge determined that the managers signed employment agreements which did not provide for any performance fees that would be paid by JC Clark. The managers appealed. Ontario Court of Appeal’s Decision The Ontario Court of Appeal allowed the appeal in part. In reviewing the employment agreements, the Court of Appeal dismissed JC Clark’s argument that the discretionary nature of the bonus provision in the employment agreements meant that the employer was entirely unconstrained as to how discretion should be exercised. If an employment agreement provides for a discretionary bonus, the employment agreement contains an implied term that discretion will be exercised in a fair and reasonable manner.[3] The Court of Appeal held that what constitutes a fair and reasonable exercise of discretion is dependent on the factual context of the case. The managers argued that their discretionary bonus should be calculated in comparison to two similar portfolio managers employed at JC Clark, whose fund did not perform as well as the appellants but received a greater portion of discretionary bonuses in 2014. The portfolio managers provided further evidence that in December of each calendar year, the employer considered the allocation of discretionary bonuses from a pool of funds set aside for that purpose. Distribution of discretionary bonuses was determined by a variety of factors including corporate performance, individual performance, attitude, teamwork, seniority, position within the company, and their length of employment at the company.[4] Taking these factors into account, the Ontario Court of Appeal concluded that a fair and reasonable calculation of bonuses would involve the fund’s performance and bonuses rewarded to other portfolio managers at the time. Ultimately, the Court of Appeal held that the portfolio managers were entitled to a discretionary bonus and awarded each portfolio manager $115,000 in damages. Conclusion This case serves as a reminder for employers that discretion should be exercised in a fair and reasonable manner, taking into account all of the factual context and objective criteria. In doing so, employers are strongly encouraged not to take an unconstrained approach that is inconsistent with exercising discretion in a fair and reasonable manner. In determining how to distribute discretionary bonuses, employers are encouraged to consider objective criteria, including individual performance, position within the company, and whether discretionary bonuses will or were awarded to similarly situated employees. “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 situations and needs.” This blog was co-authored by student-at-law, Abby Leung [1] 2022 ONCA 614. [2] 2022 ONCA 614 at para 9. [3] Ibid at para 35. [4] Ibid at para 41. By Fauzan SiddiquiBlog, Employment LawOctober 19, 2022September 26, 2023
My Employer Wants me to Return to Work In-Person. Can I refuse? Probably not. (But There are Exceptions) The end of the COVID-19 pandemic is in sight. Ontario has lifted many public health mandates and restrictions. Many Ontarians are resuming their pre-pandemic lives—including returning to work in-person. Some have welcomed the transition from working-from-home to returning to the office, while others worry about the loss of the advantages of remote work. Remote work offers the possibility of a better work-life balance, flexibility for childcare, and the time and money saved on commuting. As such, many question whether employers have a right to demand continuing to work remotely, and whether employees may have a basis for refusal. In most cases, employers do have the right to demand their employees return to the office, and employees, generally, do not have a right to refuse.[1] However, this principle may not apply to all employment situations as there are a number of factors that must be considered to determine the rights and obligations of both parties to an employment agreement. These factors include the terms of the employment contract, human rights laws, and occupational and health regulations. Employment contract Specific attention should be paid to the express and implied terms of the employment contract. Express terms are those are the clearly outlined in the agreement itself. Examples might include the wage amount, or the starting date of employment. Implied terms are not expressly stated in the agreement, but are implied by law. Thus, implied terms will largely depend on the province in which the employment takes place. An example might be where the employment contract does not provide for a termination notice period, in which case, the minimum standards as set out in employment standards legislation, would be implied into the contract.[2] If the employment contract expressly and unconditionally permits the employee to work from home, then the employer would not have the legal basis to require this employee to return to into-person work, and the employee, in turn, would have a legitimate ground to refuse this demand. Human Rights Laws Human rights laws may also provide employees with a basis of refusal, but it must be on a prohibited ground of discrimination.[3] In Ontario, the Human Right Code lists the following grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.[4] Employers cannot force an employee to return to work, if it would be discriminatory to do so. For example, if an employee cannot return to in-person work due to a disability (which is a prohibited ground of discrimination), the employer has a duty to accommodate, and this accommodation may be allowing for continued remote employment. Occupational Health and Safety Regulations Employers have a statutory duty to safeguard the health and safety of their employees pursuant to the Occupational Health and Safety Act (OHSA).[5] By law, an employer must take every reasonable precaution to maintain a safe working environment.[6] These steps include following any remaining COVID-19 public health guidance in good faith. Employees generally have a right to refuse work which they have a “reasonable basis” to believe is unsafe or a danger to their health.[7] This being said, the reasonableness of this belief is ultimately decided by a government inspector, who would be called to evaluate the working conditions should the employer and employee be unable to address and redress such concern before-hand, and on their own.[8] The standard of review for such decision is that of correctness, and based on the conditions at the time the work was refused.[9] The following situations are examples of unsafe working conditions granting a right to refuse work: driving a vehicle, which by certain characteristics, is not safe to operate;[10] or failure to provide roofing employees with anchoring technique/guard in case of fall.[11] Courts have not tested whether simply attending a physical workplace during a pandemic qualifies as an unsafe working condition. Arguably, a workplace could be unsafe where the employer does not follow public health official guidelines, mandates, or restrictions. However, this alone may not necessarily be sufficient to refuse to attend the workplace. Every situation and workplace is different. It is important for employers to carefully strategize through their return-to-work plans and ensure they are aware of each and every one of their various obligations. It is also important for employees to be aware of their rights to refuse unsafe work — despite the uncertainty as to what that could mean during a global pandemic. Conclusion Employers do have the right to demand their employees return to the office, and employees, generally, do not have a right to refuse. However, the employment contract, human rights legislation, and occupational health and safety regulations, each prove an added layer of complexity to that statement. If an employment contract expressly and unconditionally permits the employee to work from home, then the employee would have a legitimate ground to refuse an employer demand to return to the workplace. Additionally, employers cannot force an employee to return to work, if it would be discriminatory and a violation of human rights to do so. Finally, employees have the right to refuse unsafe work — but there remains uncertainty as to what qualifies as an unsafe workplace during the pandemic. “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 situations and needs.” [1] Geoff Nixon, “Why your options may be limited if your employer wants you back in the workplace”, CBC News, 4 July 2022, online: https://www.cbc.ca/news/business/canada-employers-wfh-office-return-1.6507545 [2] Employment Standards Act, 2000, S.O. 2000, c. 41, ss 57-58. [3] Ontario, Human Rights Commission, COVID-19 and Ontario’s Human Rights Code – Questions and Answers, (News Report), 18 March 2020, online: https://www.ohrc.on.ca/en/news_centre/covid-19-and-ontario%E2%80%99s-human-rights-code-%E2%80%93-questions-and-answers [4] RSO 1990, c H.19, s 2. [5] RSO 1990, c O.1 [OHSA]. [6] Ibid, s 25(2)(h). [7] Ibid, at s. 43(3). [8] Government of Ontario, Part V: Right to refuse or to stop work where health and safety in danger retrieved from: https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-v-right-refuse-or-stop-work-where-health-and-safety-danger [9] Fletcher v Canada (Treasury Board – Solicitor General Correction Service), 2002 FCA 424. [10] Morey v CAT, 2022 ONSC 4621. [11] Ontario Ministry of Labour) v Vixman Construction Ltd, 2019 ONCJ 955. By Fauzan SiddiquiBlog, Employment LawOctober 11, 2022July 5, 2023
Settlement Agreements Are Not a Done Deal! Is the Court bound by the agreement between the parties? The court explores – Whether the court is bound by an agreement made between the parties in order to reach a settlement? In the recent Court of Appeal decision, Richardson[1], the court looked at a trial decision that was contrary to a settlement that the parties had negotiated. The Court of Appeal was faced with the question of whether the trial judge’s refusal to accept the negotiated settlement between the parties was contrary to the best interests of the children, the principles of fundamental justice, and indicative of bias. The Court of Appeal said no and concluded that they would not interfere with the trial judge’s decision to not accept the settlement between the parties. In the court process, parties often negotiate a settlement in order to avoid trial. A settlement can be reached at any time during the process. One of the goals of the family court process is to encourage resolution between the parties when possible. An offer to settle should set out all the ways in which the disputed issues can be settled. Parties are strongly encouraged to consider ALL offers because rule 18(14) provides costs consequences for failing to accept an offer if the party who made the offer obtains an order that is favourable as or more favourable than the offer. If the other party makes you an Offer to Settle, you do not accept that Offer, and the order ultimately made by the court is as favourable or more favourable to the offering party than their Offer was, the offeror is entitled to their legal costs, unless the court orders otherwise, to the date the Offer was served, and full recovery of costs from that date. In other words, if the offer that is presented to you ends up being better than what you received when you went to trial, you may have to pay substantial costs to the other side. In the Richardson[2] case, the parties advised the trial judge, during the trial, that they were negotiating a settlement. The trial judge granted an adjournment but advised the trial would continue the following day whether or not a settlement had been reached. The proposed settlement was presented to the judge the following day. The settlement contained language that the children would move from one party’s primary custody (father) to the other party’s primary custody (mother); however, the final decision-making would remain with the father. This move involved significant travel (Niagara Falls to Ottawa). The trial judge reviewed the proposal and refused to approve it. No reasons provided. The trial judge decided that a move from one party’s residence to the other was not in the children’s best interest; furthermore, the trial judge amended the time sharing to reduce travel, ultimately reducing the mother’s access to the children. This case was brought to the Court of Appeal to explore the rejection of the proposed settlement. It is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children[3]. The Court of Appeal stated: “whether a settlement is in the children’s best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation”. While rejecting the proposed settlement undermines the settlement process and the court’s duty to help the parties settle their case[4], the Court of Appeal found that: “the findings of the trial judge, which were made after a full hearing on the merits and are not contested on appeal, make clear that sound bases exist for rejecting the proposed settlement”. This decision leaves the question – given the strongly encouraged process of settlement, how and why was the Richardson agreement not upheld? Ultimately, this decision reveals that, even when a settlement is proposed, the judge can reject the proposal if it fails to meet the threshold of “best interests of the child”. In this case, the dissent of Justice Nordheimer is noteworthy. He stated: “In my view, the conduct of the trial judge with respect to his rejection of the parties’ settlement, without reasons, so tainted the conduct of the proceeding that his disposition cannot be allowed to stand. To do otherwise fundamentally undermines the need for court proceedings not only to be fairly conducted but, as importantly, be seen to have been fairly conducted”. If you are contemplating a settlement outside the trial process, it is worthwhile to discuss your case with a family lawyer prior to signing. If you have more questions related to Family Law, please visit our website or contact Kenna Bromley at Devry Smith Frank LLP to discuss any questions regarding your specific family law situation and your options 249-888-6641 or kenna.bromley@devrylaw.ca. This blog was co-authored by Law Student, Kathleen Judd. “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 situations and needs.” [1] Richardson v. Richardson, 2019 ONCA 983 [2] Ibid [3] Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 1991 CanLII 8330 (ON SC), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553 [4] Family Law Rules, O. Reg. 114/99, r. 2(5)(c) By Fauzan SiddiquiBlog, LitigationOctober 4, 2022July 5, 2023
When Volunteers are Actually Employees: Ontario Court Sets a New Precedent and Approves Settlement Reclassifying Volunteers as Employees Montaque v. Handa Travel Student Trip Ltd., 2020 ONSC 3821 In 2017, several college-age students thought they were signing up for a “job of a lifetime” as trip leaders with S-Trip to travel and assist with executing activities, excursions and parties.[1] While the students were told to expect 14-hour workdays, evening shifts, and long hours, trip leaders did not receive a paycheque and were called “volunteers” in internal documents. S-Trip would only pay the students a small honorarium — well below the province’s minimum wage. A class action lawsuit was launched against S-Trip and its affiliates with the suit alleging that the trip leaders were wrongfully classified as volunteers while doing the work of an employee. It was contested whether the students were entitled to receive benefits for employees as specified under the Employment Standards Act (“ESA”)[2]. An Ontario court has approved the settlement between the former trip leaders and the organization with the firm’s Toronto-based parent company, I Love Travel. The court has agreed to a $450,000 settlement and reclassifying staff on future trips as employees rather than volunteers.[3] This case is the first volunteer misclassification class action in Canada.[4] In addition to setting a new precedent, the case has the potential to significantly impact employment law moving forward. Background Despite the fact that S-Trip advertised full-time salaried positions on their job board, S-Trip trip leaders were required to sign contracts specifying that they were volunteers providing services to the company and that no employment relationship was established between the trip leader and the company.[5] Trip leaders were responsible for performing various tasks related to pre-trip planning and procedure, travel organization, airport and flight procedures, briefing sessions, and return trip organization and procedures.[6] While staff were granted an honorarium, it was calculated by the number of trips they completed and differentiates based on position.[7] Income tax, employment insurance, and Canadian pension plan deductions were not deducted from the honorarium.[8] The Class Members argued that the following factors established an employment relationship: The Class Members are the main point of contact between the customers and S-Trip; S-Trip’s operations along with the duties performed by the Class Members serve no civic, religious or charitable purpose; S-Trip is a for-profit company; Class Members are subject to a six-step interview process, which includes a Garda Pre-Employment Background Check; Class Members are provided with extensive guidelines and manuals; Class Members are assigned mandatory duties and working schedules; The duties assigned to Class Members are obligatory and not voluntary; Class Members are compensated for their work – e., the honorarium; and The compensation provided to Class Members increases with seniority.[9] Settlement Approval The Ontario Superior Court of Justice approved the proposed settlement in the all-inclusive amount of $450,000. Justice Morgan first reviewed the principles in which the court must take into account in assessing the reasonableness of a settlement including the likelihood of success, the presence of good faith, and the future expense and likely duration of litigation.[10] In applying these principles to the settlement, Justice Morgan found that the settlement proposal was reasonable and provided several benefits including that it avoided delays associated with trial and appeals, provided for pro-rata payments based on the length of the trips taken by class members, and it achieved behaviour modification as the defendants agreed to reclassify class members as employees for future trips.[11] Justice Morgan further noted that the settlement struck a balance between individual compensation of class members and an efficient and expeditious overall distribution.[12] The court concluded by noting that the settlement achieved was a good one as it will put money in the pocket of class members that they would not likely be able to achieve on their own.[13] Conclusion As Justice Morgan noted, this is the first volunteer misclassification class action in Canada and will have a significant impact in labour and employment law moving forward. The case is significant for employers in particular as it reflects what type of resolution in class proceedings would fall within the “zone of reasonableness” required by the Class Proceedings Act, 1992.[14] While a settlement is not a binding precedent in law, the Court’s approval of the settlement provides a cautionary tale for employers. For example, employers would be well-advised to carefully consider if the volunteers in their organization may actually be considered employees by law. Further, class actions are becoming a more effective method for employees to seek claims against employers as it provides class members with a less expensive and more efficient litigation vehicle to pursue their claims. “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 situations and needs.” This blog was co-authored by student-at-law, Abby Leung [1] Lauren Pelley, “S-Trip accused of exploiting volunteer ‘trip leaders’ who work long hours” CBC August 24, 2017: https://www.cbc.ca/news/canada/toronto/s-trip-employees-1.4246725 [CBC]. [2] SO 2000, c. 41 [3] 2020 ONSC 3821 at para 6 [Montaque]. [4] Ibid at para 13. [5] CBC, supra note 1. [6] Montaque, supra note 3 at para 3. [7] CBC, supra note 1. [8] Ibid. [9] 2020 ONSC 3821 [Statement of Claim, Plaintiff at para 40]. [10] Montaque, supra note 3 at para 5. [11] Ibid at para 6. [12] Ibid at para 8. [13] Ibid at para 13. [14] S.O. 1992, c.6. By Fauzan SiddiquiBlog, Employment LawSeptember 27, 2022June 10, 2023