Amendments to the Employment Standards Act, 2000 – May 29, 2020 – Impact on Temporary Layoffs This blog is co-written by our former articling student, Janet Son. On May 29, 2020, Ontario passed Regulation 228/20 under the Employment Standards Act (“ESA”). During the pandemic, many businesses were forced to close and were faced with an impossible situation. According to the Financial Accountability Office of Ontario, approximately 2.2 million Ontario employees have experienced temporary layoffs, job losses or reduced hours in 2020. However, under the ESA if a temporary-lay off runs longer than 13 weeks in any period of 20 consecutive weeks it is considered a deemed termination and the employee would be entitled to termination pay and severance pay (a longer layoff of up to 35 weeks in a period of 52 consecutive weeks is permitted if certain criteria are met). Under Reg 228/20, businesses are no longer required to pay the termination pay and severance pay to their employees, pursuant to the ESA, due to these types of deemed terminations. As a result of this new regulation, non-unionized workers who had their hours reduced or eliminated are deemed retroactively to be on Infectious Disease Emergency Leave, which is an unpaid, job-protected leave under the ESA. Affected workers will remain employees and will also remain eligible for federal emergency income support programs. The regulation applies retroactively from March 1, 2020, and will expire 6 weeks after the state of emergency ends. Also, Section 7 of the regulation states that a temporary reduction or elimination of an employee’s work hours due to COVID-19 will not constitute constructive dismissal during the COVID-19 period. Further, in accordance with section 8, complaints filed with the Ministry of Labour due to a reduction or elimination of work hours “shall be deemed not to have been filed if the temporary reduction or elimination of hours or the temporary reduction in wages occurred during the COVID-19 period” and was related to COVID-19. However, Regulation 228/20 does not alter the common law with respect to constructive dismissal, as it relates to temporary layoffs under the ESA. Currently, it is well-established law that the employer does not have a common law right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. Typically, in order for the common law to be altered by statute, there would need to be express language in the statute to that effect, which is not the case here. How the Court will interpret and apply Reg 228/20 remains to be seen The courts may still find that employees have been constructively dismissed at common law, but they may award less generous severance package to employees. The specific facts which resulted in the temporary layoff or reduction in hours will also be relevant. Key Takeaway for Employers: Employers will not be obligated to pay out hefty sums for severance pay and termination pay under the ESA while the state of emergency is still ongoing and 6 weeks thereafter. However, if an employee has already been given a written notice of termination between March 1, 2020, and May 29, 2020, they will not automatically deemed to be on infectious disease emergency leave. Finally, this regulation does not bar employees from pursuing an action in common law and it is unclear at this stage how courts will interpret and apply this regulation. Key Takeaway for Employees: Employees will no longer be able to claim termination and severance pay pursuant to the ESA once the temporary lay-off period under the ESA ends. They now also cannot file a complaint with the Ministry of Labour as it will automatically be dismissed if the elimination or reduction of hours was due to COVID-19. However, employees can still proceed with claims in the civil courts pursuant to the common law. If you have more questions about how this new regulation will affect you as either an employer or employee contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca to discuss your rights and options. “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, COVID-19, Employment LawJune 2, 2020July 5, 2023
How to Deal with an Emergency Parenting Motion during COVID-19 This blog is co-written by our former articling student, Janet Son. Co-parenting with your ex-partner is difficult even in normal times. Now trying to co-parent amidst a pandemic with ever-changing safety guidelines is even more challenging. The courts are closed until at least July 6, 2020, and only hearing urgent matters. Despite this, there has been a flood of COVID-19 era decisions on parenting arrangements. Ribeiro v. Wright by Justice Pazaratz set out the principles on how parents should be approaching access orders during COVID-19: The presumption is that all existing parenting orders should comply with subject to modifications that may be necessary to ensure that COVID-19 precautions are adhered to (para 7) A blanket policy that children should never leave their primary residence to visit their other parent is inconsistent with a comprehensive analysis of the best interests of the child (para 10) A custodial or access parent may need to forgo their parenting time temporarily if they are subject to specific personal restrictions such as self-isolation for 14 days due to travel, sickness or exposure to illness (para 12) A parent’s personal risk factors such as employment as an essential worker may require controls and precautions before direct contact with their child can take place (para 13) Finally, reckless behaviour such as failing to comply with social distancing measures may raise concerns about parental judgment in which parent-child contact may be reconsidered (para 14) If you are considering bringing an emergency parenting motion or you have been served with one, Justice Pazaratz outlined a number of requirements (para 21): The parent bringing the motion must bring specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 safety protocols The parent responding must provide specific and absolute reassurances that COVID-19 safety measures are being followed Both parents must bring specific and realistic time-sharing proposals that are child-centred Judges will take judicial notice that many public facilities are closed and so parents should take this opportunity to spend time with their children at home Here are some cases where judges applied or distinguished Ribeiro v. Wright: WHEN YOUR CHILD IS IMMUNOCOMPROMISED In Trudeau v. Auger, an emergency motion was brought by the mother to temporarily suspend in-person access with the father as the child was immunocompromised. In this case, Justice Kwolek ordered the father to take the following precautions: disinfect frequently touched items such as doorknobs, maintain social distancing, stay at home except for necessary trips to the grocery store or pharmacy, allow no one else to enter the home, do not take the child to any public locations, wear a mask and stand at least 2 meters away when together (para 52). Justice Kwolek also outlined circumstances that may justify a suspension of access in the future: Evidence of a parent’s disregard for the safety of their child Specific medical evidence regarding the child that access would place them at significant risk of COVID-19 Specific evidence that shows increased risk due to travelling between households in your particular community If a parent becomes ill, access will be temporarily suspended If a more restrictive order is made by the government to restrict movement even further, existing parenting schedules should be re-visited (para 59) WHEN SOMEONE IN YOUR HOUSEHOLD IS A FRONTLINE WORKER In Blaskavitch v. Smith, the mother brought an emergency motion as the father’s partner is a personal support worker at a long-term care facility (para 18). The father set out in great detail the protocols in place at the facility his partner works at and the precautions they are taking within their home. They also confirmed that there have been no cases of COVID-19 at the facility (para 43). As a result, Justice Trousdale found that the father and his partner were taking all reasonable precautions and there was no evidence that his partner was not complying with work protocols. There was no cause for a temporary change in the residence of the child during COVID-19 (para 44). Though the motion was dismissed on a without prejudice basis, Justice Trousdale expected each parent to inform the other immediately if any person in their household tests positive or presents symptoms of COVID-19 so that temporary changes to access can be made. Key Takeaway: Avoid the temptation to use this situation as an opportunity to change the parenting status quo, unless you can provide concrete evidence specific to your child that they will be in danger from the existing parenting order. There are only narrow circumstances in which the court will vary an order in order to maintain as much consistency and normalcy for your children during this very distressing time. If you have been served with a motion, rally as much evidence to show that you are taking all precautions at your workplace and at home to protect your children from COVID-19. To conclude, court resources are currently scarce and the judiciary is urging parents to cooperate as much as possible and avoid litigation except only for the most serious cases. If you have more questions about bringing or defending against an emergency parenting motion during COVID-19 contact Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@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 situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Family LawJune 1, 2020September 29, 2020
COVID-19 – Employer and Employee Frequently Asked Questions Part II This blog is co-written by our former articling student, Janet Son. Employers When am I able to re-open my business? The Province of Ontario presented a multi-phase plan to re-open the economy titled “A Framework for Reopening our Province”. The Province will follow a gradual approach to allow health officials to assess the conditions before moving on to the next phase. The City of Toronto provided a guide for Employers, Workplaces and Businesses on procedures to protect employees and customers. As of May 16, 2020, the following businesses are allowed to re-open: Golf courses, with clubhouses open only for washrooms and restaurants open only for take-out Marinas, boat clubs and public boat launches for recreational use Private parks and campgrounds to enable preparation for the season and to allow access for trailers and recreational vehicles whose owners have a full season contract Businesses that board animals, such as stables, may allow boarders to visit, care for or ride their animal As of May 19, 2020, the following businesses may re-open: Retail services that have separate street-front entrances with measures in places, such as limiting the number of customers in the store and booking appointments beforehand Seasonal businesses and recreational activities for individual or single competitors such as tennis, track and field and horse racing Animal services, specifically pet care services, such as grooming and training, and regular veterinary appointments Indoor and outdoor household services that can follow public health guidelines, such as housekeepers, cooks, cleaning and maintenance Lifting essential workplace limits on construction Certain health and medical services such as in-person counselling; in-person services, in addition to virtual services, delivered by health professionals; and scheduled surgeries For businesses offering curbside pickup, Workplace Safety and Prevention Services produced a guide on health and safety for curbside pickup and delivery. What do I do if my employee cannot return to work because they are responsible for childcare while their children are at home from school or daycare? Under section 50.1 of the Ontario Employment Standards Act, the employee may be able to take unpaid Emergency Leave if they must perform childcare duties due to the closure of daycares and schools. The employee is required to advise their employer that they will be doing so and if they already started their leave, to notify their employer as soon as possible. Under subsection (4.1) an employer is allowed to ask for evidence that is reasonable in the circumstances, however, they may not require the employee to provide a certificate from a qualified health practitioner as evidence. Finally, the entitlement to leave generally ends once the state of emergency is terminated. Am I required to provide personal protective equipment to my employees? The Public Health Agency of Canada provided a guide for employers on preventing COVID-19 in the workplace. Employers should provide the necessary facilities and cleaning products to maintain a safe and clean work environment. This includes providing employees with personal protective equipment recommended by occupational health and safety guidelines. Employees Can I refuse to work because I am worried about infection from riding public transit? If you have a general fear of contagion and there has not been an order from the Medical Officer of Health, failing to attend work could be considered a “willful neglect of duty” and could lead to termination. However, if you are in a high-risk group, for example, you are over the age of 60, immunocompromised and/or suffer from another underlying health condition, you may have grounds under the Ontario Human Rights Code to discuss with your employer to ask for temporary accommodation. You may also be entitled to an accommodation if you live with someone who is considered high risk. For how long can my employer temporarily lay me off? According to section 56(2) of the Employment Standards Act, a temporary layoff is: “(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks; (b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and, (i) the employee continues to receive substantial payments from the employer, (ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan, (iii) the employee receives supplementary unemployment benefits, (iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so, (v) the employer recalls the employee within the time approved by the Director, or (vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee […]” In other words, a temporary lay-off can become a wrongful dismissal if it extends longer than 13 weeks in a period of 20 consecutive weeks without any other payments or benefits. Or after 35 weeks in a 52 week period if the employee receives payments or benefits from the employer or the government. However, the employer does not have a common law right to temporarily lay off an employee. In other words, the employer may not be able to temporarily lay off an employee at all, unless there is a contractual provision which permits the layoff. In the absence of a contractual provision, the layoff may constitute a constructive dismissal. My job has changed significantly, including duties and pay – is there anything I can do? Typically, unilateral changes by the employer without the employee’s consent can amount to constructive dismissal. However, if the changes are made in order to abide by COVID-19 health recommendations or requirements, for example modifying an employee’s hours as part of an employer’s plan to stagger shifts to reduce the number of employees in the office to ensure that physical distancing is possible, such changes may not constitute constructive dismissal. The courts have not yet explicitly addressed these issues, however, the extraordinary circumstances of a public health crisis will be relevant to determine whether the changes were reasonable. If you have more questions about employment law during COVID-19, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@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 situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Employment LawJune 1, 2020September 29, 2020
Long-Term Care Homes Ordered to Allow Nurses to Determine Appropriate levels of PPE on the Job This blog is co-written by our former articling student, Janet Son. Long-term care homes (“LTC homes”) remain particularly vulnerable in the country’s fight against COVID-19. Reportedly, LTC homes are connected to 79% of COVID-19 related deaths in Canada. The Ontario Nurses Association (“ONA”) sought an interlocutory injunction to order the following LTC homes: Eatonville Care Centre, Anson Place, Hawthorne Place and Henley Place, to stop breaching Directives issued by the Chief Medical Officer of Health for Ontario (“CMOH”) under the Health Protection and Promotion Act (HPPA). Directive #5 states that if a health care worker determines that an N95 respirator is required in the delivery of care to a patient or resident, the LTC home must provide and not unreasonably deny access to appropriate Personal Protective Equipment (“PPE”). Moreover, Directive #3 makes it clear that LTC homes must use staff and resident cohorting to prevent the spread of COVID-19, which involves ensuring residents are separated by at least 2 meters and designating staff to care for either ill or healthy patients. On April 23, 2020, the Ontario Superior Court of Justice released its decision ruling in favour of the ONA, granting the injunction and speaking to the urgency of this life or death matter. In these four facilities, over 110 residents contracted COVID-19 with at least 54 dying from the illness and this number is growing every day. At least 7 nurses who worked at these facilities also contracted COVID-19, with one needing to be hospitalized. Eatonville Care Centre According to affidavit evidence of Regina Borkovskaia, a nurse at Eatonville, nurses were denied N95 respirators even when caring for residents diagnosed with COVID-19. Management claimed that “there were not enough N95s to go around, and that in any case, they were unnecessary”. Borkovskaia believes the decision to downgrade PPE was because of short-term economic expediency rather than to protect workers and patients. There were over 25 publicly confirmed deaths and 49 cases of COVID-19 at this facility, though the ONA believes the death count is closer to 43 rather than 25. Anson Place As of April 14, 2020, 69 residents of Anson Place tested positive for COVID-19. Only nurses providing nose swab testing to residents were allowed an N95 respirator. Nurses were told to remove their N95 respirators and to use surgical masks instead despite providing care for patients that were actively contagious. Furthermore, residents diagnosed with COVID-19 were not segregated into separate rooms and were less than 2 meters away from other residents in the same rooms, along with being treated by the same nursing staff. Hawthorne Place As of April 12, 2020, there were six diagnosed cases of COVID-19 and one death at Hawthorne Place. When staff demanded access to N95 respirators, limited supply was made available and nurses were given one to use for their entire shift. They were kept under lock and key by management and some nurses deposed they were denied the N95 though they were working in wings with active outbreaks. Furthermore, while COVID-19 test results were pending, the residents and the nurses were not directed to self-isolate. Rather, they were forced to return to work. Henley Place On March 29, 2020, a resident tested positive for COVID-19. The ONA requested that N95 respirators be provided to staff interacting with residents diagnosed or suspected of having COVID-19. This request was denied and the nurses were advised to use surgical masks even when caring for patients with a confirmed diagnosis. Furthermore, staff had to go through a lengthy bureaucratic process before being approved to receive an N95 respirator. The affidavits submitted detailed examples of nursing staff who were required to perform emergency procedures on COVID-19 patients without the use of N95 respirators. The Labour Dispute and the Precautionary Principle The ONA has filed grievances regarding these practices and a hearing had not yet been expedited. As a result, the ONA felt they had no choice but to request emergency relief from the Superior Court. In the court’s decision, Justice Morgan highlighted Article 6.06 of the Collective Agreement between ONA and the LTC homes entitled “Health and Safety”, which states that “When faced with occupational health and safety decisions, the Home will not await full scientific or absolute certainty before taking reasonable action(s) that reduces risk and protects employees.” Further, under section 25(2)(h) of the Occupational Health and Safety Act, employers are to “take every precaution reasonable” for the protection of the worker. In the context of COVID-19 where the modes of transmission of the virus are not yet fully known, Justice Morgan found the precautionary principle applied to support a requirement for nurses to be provided with N95 respirators when providing care to a confirmed or suspected case of COVID-19. Furthermore, Justice Morgan found that the LTC homes’ argument that N95s are in short supply and on-demand access by nurses would impact the availability to others, “sorely miss[ed] the mark”, in particular since the nurses were sacrificing their personal interests and safety to serve the residents of these homes. The test for injunctive relief was met and compliance with Directive #5 ordered. If you find yourself with similar concerns about adequate access to PPE at the workplace, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca to discuss your rights and options. “Our articles are 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, COVID-19, Employment LawMay 19, 2020September 30, 2020
“Our articles are 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.”
Insurance in the COVID-19 Era, Can Insurance Save Your Business? This is a time of great uncertainty where businesses are incurring losses and extra expenses due to the coronavirus. The question is: who has to bear these losses? Is it the businesses themselves? Government? Insurance? Your company may have insurance that can help save your business during these unprecedented times. This article does not constitute legal advice What Insurance Does the Business Have? Property/Business Interruption Act of God/Force Majeuere Commercial General Liability Policy Umbrella or Excess Policies Civil Authority Extension All Risks Policy Environmental Insurance Policy Event Cancellation Policy Infectious Disease Endorsement Non-Physical Damage Endorsement Pandemic Endorsement A Policy With Specialized Wording What Is Business Interruption Coverage? Business interruption insurance is intended to indemnify a business for its loss of profit and additional expenses that arise due to an insured peril.[[i]] What Is “Act Of God” Coverage? “Act of God” or “Force Majeure” in insurance terms is a damaging event that is beyond human control, for example, an earthquake or a hurricane[[ii]]; however most policies have specific exclusions for natural disasters and viruses under the excluded perils exclusions in its policies. Does the Commercial General Liability Policy Provide the Necessary Coverage? Many Commercial General Liability Policies provide business interruption insurance but unfortunately, many businesses only have such coverage under their commercial property insurance policy.[[iii]] If that is the case, business interruption arising out of property damage may trigger the policy but an event such as coronavirus is unlikely to do so if the claim is for lost income due to loss demand in this coronavirus era. That said, if the business is unable to operate due to the presence of the contagion in the premises, then more questions should be asked.[[iv]] For example, if a manufacturer of food has to shut down while the facilities are disinfected, it becomes a more interesting question, than whether the facilities are losing revenue because the demand for its product has fallen. Another thing to consider is whether there was “Act of God” coverage under the commercial general liability possibility.[[v]] Umbrella and/or Excess Policies These policies should be reviewed to consider whether they could be triggered. Infectious Disease Endorsement A business should determine if it has an infectious disease endorsement that may provide coverage for losses by infectious or communicable diseases. This may provide COVID-19 coverage for losses.[[vi]] Non-Physical Damage Endorsement Similarly, a business should consider if it has a non-physical damage endorsement as it may provide coverage for COVID-19 losses.[[vii]] Civil Authority Endorsement Civil authority endorsements relate to situations where access to the premises is prohibited by civil authority. Often the length of time may be specified such as 2-4 weeks.[[viii]] Issues will need to be considered about mandatory versus voluntary closures and whether there is a partial versus a complete closure and whether there was COVID-19 present versus a closure to prevent its presence. All Risks Policy The wording of the policy will need to be considered. This may be an area where COVID-19 claims may be covered through an argument that COVID-19 presents an identifiable risk to human health and safety. Litigation will likely be needed to determine if a virus is a “direct physical loss” under an All Risks policy. Environmental Insurance Policy Another policy that should be considered is an environmental loss policy. An environmental policy may cover losses from coronavirus if it covers biological contaminants and/or viruses and/or communicable diseases. It would need to cover indoor loss exposure. Many will not meet these criteria but they should be considered.[[ix]] Event Cancellation Policy Many events such as trade shows, festivals, sporting events, conferences, theatre and concerts may have event non-appearance or cancellation coverage. This provides insurance protection in cases where the headliner cannot appear for reasons such as illness or an accident. Many events have been cancelled due to the need for social distancing, so the non-appearance and cancellation clauses may be triggered.[[x]] Policies issued after January 23, 2020, may have a COVID-19 exclusion but policies obtained before that probably do not. Coverage can help the organizers recoup some expenses and losses. Pandemic Endorsement This is not a typical endorsement that a small or middle sized business is likely to have. This policy has been successfully triggered by Wimbledon and NCAA.[[xi]] Policy With Specialized Wording If your business is insured by a policy with specialized wording then there may be coverage where typically there may not be. Consideration of the wording is needed. Does Your Business Have Insurance Coverage Once the policies are identified and the particular endorsements and exclusions are identified, one needs to give consideration to the specific wording. At this point, it is unclear how insurers will consider coronavirus claims and whether they will be considered a “force majeure” or whether they will be excluded. There are currently no pending cases or judicial decisions on the issue, but that will undoubtedly change in the coming months. If you submit a claim and are denied, a legal opinion should be considered to determine whether you may have a viable claim or whether to take no as an answer. [i] Gord McGuire & Tim Zimmerman, “Are Coronavirus Losses Covered Under Business Interruption Insurance Policies?”, The Star (March 27, 2020), online: <https://www.thestar.com/opinion/2020/03/27/are-coronavirus-losses-covered-under-business-interruption-insurance-policies.html>. [ii] HUB Insights, “Act of God Insurance Claims Currently Remain Under Question as Businesses Look for Ways to Recoup Losses in the Wake of COVID-19”, HUB International (April 15, 2020), online: <https://www.hubinternational.com/blog/2020/04/act-of-god-insurance/>. [iii] Chetan Sehgal, Jay Ahluwalia, Matthew Law & Crawford Smith, “Insurance Coverage and COVID-19: Legal Considerations and Loss Quantification Developments”, BDO Canada (April 3, 2020), online: <https://www.bdo.ca/en-ca/insights/advisory/commercial-insurance-loss-accounting/insurance-coverage-considerations-on-covid-19/>. [iv] Gord McGuire & Tim Zimmerman, supra note 1. [v] HUB Insights, supra note 2. [vi] Tim Zimmerman & Gord McGuire, “The Calm Before the Storm: Business Interruption Insurance Litigation”, The Lawyer’s Daily (April 9, 2020), online: <https://www.thelawyersdaily.ca/articles/18561/the-calm-before-the-storm-business-interruption-insurance-litigation>. [vii] Ibid. [viii] Chetan Sehgal, Jay Ahluwalia, Matthew Law & Crawford Smith, supra note 4. [ix] David Dybdahl, “Environmental Insurance Coverage for COVID-19 and Other Biological Hazards”, IRMI (April 2020), online: <https://www.irmi.com/articles/expert-commentary/environmental-insurance-coverage-for-covid-19-losses>. [x] HUB Insights, “Coronavirus Resulting in Event Cancellation? Your Non-Appearance/Cancellation Policy May Help Counter Costs”, HUB International (April 10, 2020), online <https://www.hubinternational.com/en-CA/blog/2018/09/event-cancellation-insurance/>. [xi] HUB Insights, supra note 2. “Our articles are 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, COVID-19, Insurance DefenceMay 12, 2020July 5, 2023
“Our articles are 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.”
COVID-19 – Family Law Property Scam Even during this pandemic, there are some separated or separating spouses who are trying to take advantage of the situation, and the operation of Part 1 of Ontario’s Family Law Act, to try to get ALL of their ex’s wealth. It is important for married spouses to understand how that can happen, so they can plan accordingly. Up until COVID19 hit, when it came to property matters, separated spouses were more concerned about what happens when assets increase significantly after separation and when those separated spouses share in that increase and when they don’t. Unfortunately, due to the COVID19, the economy is facing the opposite situation, with people’s RRSPs and other investment savings plummeting in value. Even with the Courts almost completely closed, many spouses are making legal claims to try to get ALL of what their ex has left. There may be some situations where that is the proper result, but in most it is not. This type of action is not unique to COVID19. It is also a concern whenever the economy takes a downturn. It was also a problem in 2008 and 2009. To understand how his scam works, it is necessary to understand how property division works after a marriage occurs. There is no property division for common law couples under Ontario’s Family Law Act. To briefly summarize and simplify how property division works (follow the links for a complete explanation), with some exceptions, married couples share the increase in their net worths from their date of marriage to the day they separate. That makes those two dates very important. With the possible exception of matrimonial homes, married spouses start counting how much net worth they have, and really how much what they have has increased in value from the date of marriage. For the purposes of property division under Ontario’s Family Law Act, they stop considering their increase in net worth on the date they separate. But, in these trouble times, that same law means that they stop counting any decrease in network on the date of separation too. The value of what a spouse owns before the date of marriage and after the date of separation don’t matter. All that matters is what the married spouses had on those two dates. That fact is what makes this scam work. Ontario Family Law recognizes that spouses do not have to physically separate, meaning one spouse walking out of the home, for the spouse to be separated. The law recognizes that spouses can live “separate and apart under the same roof.” The law says that when the spouses move apart is not necessarily the important date for property division, but rather the important date is when they stop living together as husband and wife, even if they continue to reside under the same roof. That gives at least one spouse a big incentive to say the marriage was over, and the parties stopped living as husband and wife BEFORE the COVID19 crisis hit. It gives an incentive to say the marriage ended before the value of their spouse’s assets plummeted – and to say that they were just sharing the same space as co-tenants, not as spouses anymore. To illustrate the advantage this gives, consider a situation where one spouse had $500,000 in investments, but no other significant assets on January 1, 2020 and the other spouse had very little. By the end of March, those investments have fallen to $250,000 in value and the stress of being isolated together in the home means that one spouse walks out. But, that spouse with no assets does not want to share in $250,000. That spouse wants to share in $500,000. So, that spouse says they separated – stopped living like spouses – on January 1 when the investments were worth $500,000. Under Ontario Ontario’s property equalization scheme, that means that spouse would be owed an equalization payment of half the assets on January 1 – $250,000 – or ALL of what his or her ex has left. That is an extreme case. Most won’t have results that bad. But, it illustrates the point. Of course, the opposite it also true. If the spouses had a big fight on New Years, never got along afterward, and stopped living like spouses then, the spouse with the investments has a BIG INCENTIVE to try to reconcile the relationship, even briefly, while the investment value has cratered. Because, if the spouses rekindle their relationship, even for a couple of days or nights, the date of separation becomes that last date, and they share in the LOW value for the assets. That could be a big help, particularly if everyone’s investments rebound after the crisis. The law is not so unreasonable as to allow one spouse to pick the date of separation that benefits him or her the most. If the parties cannot agree, it is a judge or family arbitrator that decides. With so much money potentially at stake, there is clear incentive for one spouse to lie or stretch the truth. Consequently, judges try to look at the facts objectively and ask themselves: “When would an objective person, who knew the couple, say the relationship was over?” In determining that, it is not just when the couple stopped having sex, or even when one spouse started having an affair (some relationships recover from that). The judge (or arbitrator) looks at factors such as: when the spouses stopped eating together, when they stopped going out or vacationing together, when they stopped showing signs of affection for each other, when they stopped referring to each other as spouses, when they took the wedding rings off, when they separated their finances (opened separate accounts or stopped paying each other’s bills), many other possible factors depending on the family’s situation. Determining when spouses separated in these difficult circumstances can be open to argument. Also, the separation date can be very dependent on the specific facts of the individual case. Since there can be a lot of money at stake, it is important for spouses in the midst of a separation to get in touch with a lawyer who can provide advice based on the specifics of the individual situation. The specific circumstances can make a big difference on what a separating spouse should do to protect himself or herself. It can be important even for someone to speak to a lawyer before he or she walks out to determine when might be the best time to do that, or even if that matters anymore. In these situations, the lawyer’s advice can save a spouse thousands, even hundreds of thousands, of dollars – especially when it helps avoid a scam. For more information about family law related questions and advice, please contact John Schuman at john.schuman@devrylaw.ca or 416-446-5080. “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, COVID-19, Family LawMay 5, 2020August 12, 2024
Property Division During COVID-19 In my previous post, I touched on the issue of changing support obligations in light of the pandemic. More and more, separating spouses are wondering how property issues will be dealt with in light of the pandemic, particularly as assets are dropping in value after separation. In Ontario, we follow an “equalization” regime under the Family Law Act. Broadly put, this means that spouses share in the increase of their net worth for the duration of their marriage. Generally, the spouse who had the greater increase of net worth during the marriage would pay the other spouse one half of the difference. For example, if Husband’s net worth grew by $100,000 during the marriage, while Wife’s net worth grew by $50,000, then Husband would owe Wife and equalization payment of $25,000 (which is half the difference between $100,000 and $50,000). Equalization is explained more fully here. For now, it is important to understand that two dates become very important: the date of marriage, and the date of separation. Both spouses’ net worth as of these dates become crystallized, which determines the figures used to calculate the equalization payment owing. Generally, fluctuations in the value of assets following separation are not considered, which could lead to unfair results. Some examples: Husband is an employee at a publicly-traded company but receives company shares as part of his compensation package. At the date of separation (pre-pandemic), he solely-owned shares worth $1,000,000. Following the pandemic, the value of the shares dropped by 10%, which may continue to plummet. This provides for a $100,000 reduction of the husband’s net worth post-separation. However, following a true “equalization” would provide that any decrease in value post-separation is not shared between the parties. As such, Husband would be accountable for the entirety of his equalization payment, while still absorbing the decrease of his net worth post-separation. Wife solely owns a retail store in downtown Toronto. At the date of separation (pre-pandemic), it was worth $500,000. In light of the pandemic, she is unable to pay her overhead costs and must close her doors. As a result, she is stuck with a business that she will struggle to sell. Again, a true equalization regime would have no regard for any post-separation fluctuations in value, leaving Wife accountable for an equalization payment that would otherwise be owed to her Husband. In either scenario above, the spouse owning the assets could look to section 5(6) of Ontario’s Family Law Act to request an “unequal division of net family properties” to avoid absorbing the entirety of the loss. Even then, the test under section 5(6) is stringent. The moving party would need to demonstrate that following a true equalization regime would “shock the conscience of the court”. For more information about property division or any other family law related issue, please contact the author of this blog post, Mason Morningstar at mason.morningstar@devrylaw.caor 416-446-3336. “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, COVID-19, Family LawMay 5, 2020August 12, 2024
Changing Child Support or Spousal Support Payments During COVID-19 Child and spousal support obligations take effect either pursuant to a court order or a separation agreement (to be sure, many people make informal arrangements amongst themselves, though this is rarely advisable). Separation agreements typically contain review clauses which outline the process for changing a payor’s child or spousal support obligations, along with what kind of change in circumstances will trigger the review. Parties who have signed a separation agreement addressing support should begin there when seeking to vary a support obligation. In Ontario, support orders are made either pursuant to the Divorce Act or the Family Law Act, depending on the court in which the proceedings took place. Sections 17(4) and 17(4.1) the Divorce Act and sections 37(2) and 37(2.1) of the Family Law Act outline the tests for varying child support and spousal support slightly differently. In practice, however, we are generally concerned with whether a “material change in circumstances” has taken place since the order was made. A “material change” is interpreted as a change, which if known at the time of the order, would have resulted in a different order being made. The loss of employment (or even a reduction of income) beyond the payor’s control would generally justify a variation of child and/or spousal support in ordinary times. To date, there is no reason to believe that the loss of employment or income resulting from the pandemic would be any different. That said, support payors should be careful in navigating a reduction of support. At all times, they should make good faith efforts to be transparent and continue paying what is affordable to them. For example, if a support payor underwent a 40% loss of income as a result of COVID-19, a good faith effort would be to negotiate a roughly 40% reduction to their current support obligations. Practically speaking, however, this may not necessarily be feasible. The support payor’s remaining monthly expenses (such as rent/mortgage, utilities, car insurance, debt payments, etc.) have not automatically dropped by 40% as well. It will be important for the support payor to alleviate their losses as much as possible, for example, by applying for emergency relief from the government where appropriate, deferring debt payments and insurance premiums where possible and looking for other employment in the meantime. When the courts resume regular function, many of these support payors will need to begin court proceedings to formally vary their support obligations or any arrears that accrue over the ensuing months. A payor’s good (or bad) faith efforts to continue paying support will likely be a factor considered by the court when addressing the issue. For more information about child support or any other family law related issue, please contact the author of this blog post, Mason Morningstar at mason.morningstar@devrylaw.caor 416-446-3336. “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, COVID-19, Family LawMay 4, 2020August 12, 2024
Canadian Spouse? Travel to Canada During COVID-19 Canadian Spouse? Travel to Canada During COVID-19 By now, you are probably aware that Canada like most other countries has implemented stringent travel restrictions on travellers to Canada in the midst of COVID-19. The restrictions affect everyone including citizens, visitors, workers, and their family members. The travel restrictions have come down in the form of Orders in Council (OICs), i.e. legal instruments created by the Governor General. While these provide basic rules surrounding restrictions and exemptions, they leave room for a lot of confusion as to how they apply in practice. This has been particularly so for spouses not currently living together in Canada where one spouse is a Canadian citizen or permanent resident and the other a foreign national. This has led to foreign nationals with Canadian spouses in Canada being frequently denied permission to travel to Canada. According to the OICs, the basic restriction against foreign nationals travelling to Canada doesn’t apply to spouses of Canadian citizens or permanent residents so long as the foreign national has no COVID-19 symptoms and can prove they’re not coming here for a discretionary or optional purpose. Unfortunately, the OICs don’t define optional or discretionary. This has led to many instances of spouses being denied permission to travel to Canada since the prevailing OICs came into effect at the end of March 2020. Airline personnel and officers of the Canada Border Services Agency (CBSA) have been tasked with assessing the travellers’ purpose in a short turnaround time based on whatever information the traveler provides. This has been and continues to be a distressing problem that keeps spouses apart longer than they perhaps intended. The Canadian government has been trying to provide further clarity by regularly updating its websites and practice directions, though these have at times led to further confusion. In perhaps what is one of the most useful updates so far, Immigration, Refugees and Citizenship Canada (IRCC) provided a substantial but non-exhaustive list of examples on April 29, 2020 of optional versus non-optional. That list clearly indicates the following are non-optional; coming to live permanently with a Canadian spouse, coming to spend the pandemic period with their spouse and to ensure each other’s wellbeing during this time, and to take care of ill family members who have no means to otherwise to do so. No doubt, spouses who fell into these categories were previously denied permission to travel up to now. Hopefully, this new direction from the IRCC will provide clearer parameters to airline personnel and CBSA officers making these tough assessments and will result in the reunion of spouses suffering the current hardship of being apart. If you, your spouse or any other family members have been denied permission to travel to or enter Canada, please contact our immigration lawyer Maya Krishnaratne at maya.krishnaratne@devrylaw.ca or 416-446-5841. “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, COVID-19, ImmigrationMay 1, 2020September 30, 2020
What Can I Get Ticketed for During the COVID-19 State of Emergency in Ontario? This blog is co-written by our former articling student, Janet Son. There is a growing list of Orders-in-Council being made under the Emergency Management and Civil Protection Act (“EMCPA”), which provides the Ontario government with sweeping powers to put measures in place to contain the COVID-19 pandemic. However, there is a growing concern about excessive ticketing and fining by police and by-law officers. Many seemingly benign activities such as doing a chin up at a soccer net in an empty field, a family rollerblading together or walking your dog through the park have resulted in hefty fines for individuals. During a time of financial strain, these tickets are ranging from $750 to a summons, which upon conviction could result in a $100,000 fine for individuals and $10 million for businesses. Since April 24, 2020 the Toronto Police has issued 185 tickets and 16 summons. A regulation under the EMCPA ordered the closure of outdoor recreational amenities including all playgrounds, play structures, equipment, sports facilities, multi-use fields, off-leash dog areas, portions of park and recreational areas containing fitness equipment, allotment gardens, community gardens, picnic sites, benches and shelters in park and recreational areas. This list also includes outdoor recreational amenities whether or not they are publicly or privately owned. However, individuals are allowed to walk through or use portions of the park and recreational areas that are otherwise not closed or do not contain an outdoor recreational amenity. These over-broad prohibitions have led to individuals worrying about receiving a ticket for sitting on a park bench for too long. Toronto Police has clarified that enforcement officers should be considerate of those who need park benches as “temporary respite” or for those experiencing homelessness. Furthermore, another regulation under the EMCPA requires an individual to identify themselves to police if they have reasonable and probable grounds to believe that an individual has committed an offence under the EMCPA. Toronto Police stated that they are working with the City of Toronto on education and enforcement initiatives that would support public health efforts. However, a constitutional challenge may be mounted about the legality of this type of ticketing. Though we are living through a public health crisis, police measures still need to be proportionate and not arbitrary. If you have been ticketed for violating a regulation under the EMCPA contact criminal lawyer David Schell at david.schell@devrylaw.ca or at 416-446-5096 to learn more about your rights. “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, COVID-19, Criminal LawApril 30, 2020August 27, 2024