How is COVID-19 affecting child and spousal support in Ontario? The coronavirus pandemic has brought far-reaching economic shock waves across the country. Over one million jobs have been lost in Canada due to COVID-19 in the month of March alone. As this crisis continues and more jobs and businesses evaporate, support payors and support recipients are going to feel the financial strain. If you are a support payor pursuant to a court order, child and spousal support must still be paid despite the current state of affairs. Each region has its own notices and practice directions regarding support issues. Since April 6, 2020, the Notice to the Profession for the Central East Region which includes Whitby, states that the following matters are eligible for a hearing in writing or virtually before a judge: 14B motions requesting consent Orders on issues such as support – a Support Deduction Information Sheet (“SDIC”) is required to assist in completion of a Support Deduction Order (“SDO”). If one or more than one party is represented by counsel, a draft Order is to be submitted with the SDO. Consent Motions to Change (Form 15D), if a party is represented by legal counsel then the SDIC and SDO are to be filed. Case Conferences upon request by 14B, if granted, are limited to 30 minutes unless permitted otherwise by the triage judge and only 1 or 2 pressing issues can be conferenced which includes financial issues that do not meet the stringent urgency test. Before proceeding with motions to the Court, first determine if you are eligible for any Federal government relief programs such as the CERB or Wage Subsidy Program. Eligibility may allow you to at least continue partial payments. Though, keep in mind that under Section 11 of the COVID-19 Emergency Response Act, CERB payments cannot be garnished by the Family Responsibility Office (“FRO”) at this time. The next step would be to explain your financial situation to the person you are paying support to. Cooperate as much as possible in an attempt to agree to a temporary reduction of support and/or to pay out any arrears with a modified payment plan if and when you are able to regain employment. Once an agreement is made, request a consent motion for an Order to reflect the temporary agreement regarding support arrangements during this time. The Family Responsibility Office (“FRO”) has confirmed that they will not be sending any new notices of driver’s licence suspensions and are in the process of cancelling notices that were previously sent in order to reduce the number of urgent refraining motions. This means that motions to vary or stop support payments will unlikely be considered “urgent” enough to be heard by the court at this time unless the payor is in “dire financial circumstances”. In Theis v. Theis, 2020 ONSC 2001, the support payor mother brought an urgent motion requesting that her share of the sale proceeds of the matrimonial home be released. She was a small business owner who was forced to shut down due to provincial restrictions and her revenue had dropped to zero. Unfortunately, she failed to provide evidence of “dire financial circumstances” warranting an urgent motion including her: her previous income before the restrictions; her total income now from all sources; her personal and business expenses; the extent of her resources more generally; an updated sworn financial statement; and the results of any applications for federal relief funding and timelines. As a result, due to the dearth of evidence in her motion materials, no finding of dire financial circumstances could be found and her motion was dismissed. The key take-away is try to negotiate a temporary settlement and bring a motion on consent or as a last resort bring an urgent motion if you have enough evidence to demonstrate dire financial circumstances. Contact family lawyer Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@devrylaw.ca if you have more questions about support obligations during the coronavirus/COVID-19pandemic. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 27, 2020September 30, 2020
How to Deal With Domestic Violence and Child Abuse During COVID-19 This blog is co-written by our former articling student, Janet Son. This pandemic has brought the surge of another life or death danger: women and children who are forced to self-isolate with their abusive partners. According to the Ontario Association of Interval and Transition Houses (OAITH), a network of 70 shelters across Ontario, they have seen an alarming increase in the number of calls from women who are facing domestic violence; and there are many more who are now unable to safely contact help. The Ontario Superior Court is still hearing urgent family law matters pertaining to the safety of a child or parent such as a obtaining a restraining order, restrictions on contact between parties or exclusive possession of the home. For lawyers, now is the time to get educated on how to spot the red flags of family violence amongst your client base and take appropriate steps. Luke’s Place provides online CPD accredited training called “Effective Lawyering with Clients Leaving Abusive Relationships” designed for Ontario family lawyers. For those who are at risk or have experienced violence in the home, their priority should be to get a safety plan. The Assaulted Women’s Helpline Crisis Line can be reached: Toll-free at 1-866-863-0511 Toll-free TTY: 1-866-863-7868 Text #SAFE (#7233): On Rogers, Fido, Bell, or Telus Mobile Shelter Safe provides a comprehensive list of resources to connect with a local women’s shelter across the country. Family Court and Beyond provides comprehensive information on leaving an abusive spouse including safety planning tips. The Superior Court has begun to release COVID-19 family decisions. In Reitzel v. Reitzel, 2020 ONSC 1977, a father’s motion for parenting time with his children was deemed non-urgent. It had been six months since the parties’ separation and he had only exercised limited parenting time, taking the children to sporting events. The mother opposed the motion alleging that the father was verbally and physically abusive towards her and all their children when they were together and that he continues to harass, stalk, and intimidate them. In the aforementioned case, The Family and Children’s Services of Waterloo Region (“FACS”) interviewed all the children after the separation and provided a letter in support of the mother for the motion, stating that it does not support any unsupervised parenting time with the father. Though Justice Madsen found the letter by FACS to be preliminary untested evidence, it will be considered along with further evidence for a future motion to determine parenting arrangements. Victims of domestic violence should shore up as much evidence as possible to demonstrate the danger they are experiencing. Involvement of Children’s Aid Societies can assist in obtaining this evidence and provide further resources for safety-planning. If you have more questions about domestic violence in your family law situation, contact Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@devrylaw.ca. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 20, 2020August 12, 2024
Force Majeure in the COVID-19 Era. Can It Save Your Business? In these unprecedented times of COVID-19, business owners are facing unprecedented hardship and economic losses. Contractually, how a party defines the parameters of Force Majeure/Act of God will be crucial to the interpretation. Legal consideration is highly recommended before a decision is made to not perform the terms of the contract. Heavy penalties can be granted for failure to live up to contractual obligations. However, if it is a valid Force Majeure event, your company may not be obligated to live up to the agreed upon contract. Similarly, if the party you contracted did not live up to its obligations you may have recourse depending on the wording of the Force Majeure clause. Similarly a company should consider the insurance implications of a contract. Again, depending on how a company has contracted with its insurer, it may be eligible to receive business interruption benefits during this unprecedented time. This could mean the difference between bankruptcy and the survival of a business in these unchartered waters of COVID-19. FORCE MAJEURE According to the Black Law’s Dictionary Force Majeure is defined as an “event or effect that can neither be anticipated or controlled”. It is also referred to as an “Act of God”.[1] This contractual term will help define a company’s obligations under its contracts and whether a company may be entitled to insurance relief in this difficult time. There is little legislative or case law guidance on obligations for epidemics and potential pandemics. Legal advice should be sought to highlight your risks. The Court places the burden of providing Force Majeure on the party intending to rely upon it to establish that compliance was impossible and not merely inconvenient or more difficult.[2] WHERE TO BEGIN The first step is to look at the contract, whether it is a contract with a customer, supplier, vendor, etcetera. Force Majeure clauses are not mandatory. If it is not included in the contract this would not be a viable defence for cancelling a contract. It may be that the Force Majeure clause will grant more time to fulfill a contractual obligation. It may allow a party to back out of the contractual obligation completely. It may provide relief that is contemplated in the contract. The Courts will look at the specific terms of the specific contracts.[3] Once it is established there is a Force Majeure clause, the next step is to determine what types of situations it contemplates. Is it a broad clause? Does it using wording of a health emergency? Does it use wording of a national emergency? Does it include wording of a pandemic? If the answer is that the contract contemplated a pandemic such as COVID-19, was the failure to complete the contract due to COVID-19? It may be that there were other circumstances such as not having put the necessary infrastructure in place at the outset of the contract, irrespective to the COVID-19 circumstances that would have caused the party to default on the contract. In such cases the Force Majeure clause would not be helpful. ACTIONS The type of action taken will be dictated by the terms of the contract. For example, in the case where the contractual terms save the party from its obligations if a legislative authority cancels an event rather than the company itself, the company may wish to work cooperatively with the local authority to have it cancel an event instead of the company itself. This could make the difference between contractual penalties versus a valid cancellation. DUTY TO MITIGATE Does the contract require you to mitigate your damages? Were you cancelled on? Did you cancel? Chances are the contract has a duty to mitigate provision, in order to mitigate the damages caused by the cancellation. This will lead to considerations of what steps were taken instead. Could services be provided but at extra costs? Could some money be recouped for example selling inventory in a different way or for a loss? THE COURTS HAVE CONSIDERED FORCE MAJEURE CLAUSES The Supreme Court of Canada has considered the issue of Force Majeure in a contract in the case Atlantic PaperStock Ltd. v. St. Anne-Nackawic Pulp & Paper Co...[4] The Court considered a clause that contained the words “non-availability of markets” and found it generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The Court held that in considering such clauses, the common thread is that of the unexpected, something beyond reasonable human foresight and skill. If markets were unavailable, did they become so because of something unexpected happening? Was the change so radical as to strike at the root of the contract? Could the party, through the exercise of reasonable skill, have found markets in which to trade? In this case, the contract contemplated the following to be frustrating events: an act of God, the Queen’s or public enemies, war, the authority of the law, labour unrest or strikes, the destruction of or damage to production facilities.[5] In that case, it was not sufficient for a party to cancel a contract because it could not complete the work profitably. Similarly, a closed or declining market is not sufficient to trigger the clause.[6] The Ontario Court has found that the Force Majeure clause can be triggered due to unforeseen humidity and a heatwave.[7] The province wide black out in 2003 was also considered a Force Majeure by the Court.[8] The Ontario Court has found, however that the Force Majeure clause was not triggered where there was a dramatic drop in real estate values.[9] In this instance, a party was still required to complete the unconditional agreement of purchase and sale. Similarly the volatility of financing rates is not considered a Force Majeure.[10] Similarly a failure of a courier company to deliver a package on time was not considered a Force Majeure.[11] The Courts do not appear to regard changes in economic or market circumstances itself as a Force Majeure. The Court does not analyze profitability to determine whether an event is a Force Majeure. The Courts require a higher threshold to be met of something unforeseeable in order to trigger the Force Majeure clause. Before relying on a Force Majeure clause, get legal advice to help determine if it is likely to be enforceable. IS THERE INSURANCE AVAILABLE TO HELP WITH LOSSES? Once contractual obligations are considered, you should determine whether your insurance coverage can help compensate for losses. Many businesses carry business interruption coverage. Again, like with contracts between parties, the specific terms of the insurance policy will specify the coverages and exclusions. You should obtain legal advice to help determine whether you have coverage available to you. Courts tend to interpret insurance contracts more broadly so you may be found to have coverage under your insurance policy for COVID-19 losses. CONCLUSION In this COVID-19 era, many businesses face economic difficulties. Looking to your contracts will help the business determine if it has any recourse in its contracts for additional time, or the ability to cancel part or all of a contract. The wording of the contracts will be important. Legal advice is necessary to help guide that decision. Getting it wrong can have expensive consequences so be aware of the risks. Also at this time, consider whether you have any insurance coverage that could be triggered by COVID-19. [1] Black’s Law Dictionary, 11th ed, sub verbo “force majeure”. [2] Evan Bolla, “Force Majeure and Insurance Considerations for COVID-19 Cancellations” (18 March 2020), Risk Management Magazine, online: <http://www.rmmagazine.com/2020/03/18/force-majeure-and-insurance-considerations-for-covid-19-cancellations/>. [3] Ibid. [4] Atlantic PaperStock Ltd. v. St. Anne-Nackawic Pulp & Paper Co., [1976] 1 SCR 580. [5] Ibid at para 4. [6] Ibid at para 6. [7] CAW-Canada, Local 252 v. Maksteel, 2012 CarswellOnt 6790 at para 26 (Ont Arb). [8] Partnership for Public Lands v. Ontario (Director, Ministry of the Environment), 2003 CarswellOnt 5130 at para 12 (Ont Environmental Review Trib). [9] Holst v. Singh, 2018 ONSC 4220 at para 6. [10] Tom Jones & Sons Ltd. v. R., 1981 CarswellOnt 680 at para 15 (Ont HC). [11] Iannuzzi v. Ontario (Ministry of the Environment), 2009 CarswellOnt 7555 at para 32 (Ont Environmental Review Trib), citing Miller v. Ontario (Director, Ministry of the Environment) (2008), 36 CELR (3d) 305 (Ont Environmental Review Trib). “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, Commercial Litigation, COVID-19April 17, 2020August 20, 2024
“COVID-19 cases are on the rise in Ontario. Do I really have to facilitate my ex’s access time with our kids?” The amount of COVID-19 cases in Ontario continues to increase. As of April 10th , there are more than 6,200 confirmed cases of the coronavirus in the Province, with the majority of cases in the Greater Toronto Area – Global News Since this pandemic began, the Canadian Government has been urging Canadians to do one thing: stay home. But for many Canadian children with separated parents, this is not practicable, as those families likely have an existing agreement or court order specifying the duration and frequency of each parents’ time with the children. Many separated parents may be tempted to interfere with the existing parenting arrangements amid COVID-19, citing safety concerns as the rationale, but the courts in Ontario have been pointedly clear that this is not appropriate. Worse, if a parent does unilaterally alter the child(ren)’s schedule with the other parent, the Courts have been clear that there may be consequences for that parent once regular court operations resume – Canlii According to Justice Pazaratz of the Ontario Superior Court – Canlii, existing parenting arrangements and schedules should continue in the majority of cases, while potentially making changes to transportation or exchange locations to ensure physical distancing guidelines are followed – Global News If an issue does arise with respect to the existing parenting arrangements, such that it is no longer safe to facilitate parenting-time between your child and your ex, you may meet the test for “urgency”, which would allow your matter to be put before a Judge. In order for your matter to be considered “urgent”, based on the jurisprudence to date in this unprecedented area: Your concern must be immediate, meaning that in no circumstances could it wait for resolution at a later date; Your concern must be serious enough in that it significantly affects the health, safety or economic well-being of you, your ex and/or your children; and Your concern has to be rooted in real evidence. It cannot be speculative or theoretical. If your matter is not urgent, the Courts are encouraging parents, now more than ever, to work together to show flexibility, creativity and common sense — to promote both the physical and emotional well-being of children. Children always need the love, guidance and emotional support of both of their parents, but they need it even more during these unprecedented, troubling and scary times – Canlii If one parent is self-quarantined after travel or possible exposure to the virus, and direct physical contact with his/her child is therefore inappropriate at this time, it is important that parents work together to ensure that a child’s relationship with that parent is not negatively affected in any way. Various communication outlets such as Facetime, Zoom, Skype, etc. can help with that and your willingness to engage your child(ren) in these types of video chats demonstrates your ability to support and encourage your child(ren)’s relationship with their other parent and act in accordance with your child(ren)’s best interests. For more information on these issues, as well as information as to how COVID-19 affects child and spousal support, listen to episodes 45, 46 and 47 of the Ontario Family Law Podcast by John Schuman, Certified Specialist in Family Law and managing partner of the Family Law Group at Devry Smith Frank LLP – Devry Law Podcasts By Fauzan SiddiquiBlog, COVID-19, Family LawApril 13, 2020September 30, 2020
What the Coronavirus Means for Canadian Employers Over the past several weeks, news of the Novel Coronavirus (2019-nCoV or Coronavirus) has dominated our newsfeeds with 208 cases in Ontario at the time of writing, 102 of which are in Toronto. COVID-19 has been declared a global health emergency by the World Health Organization. Wuhan, China is ground zero for COVID-19. China responded with an aggressive strategy and taken the extraordinary step of confining residents of Wuhan to their homes. Although the consequences for Canadians are still uncertain, many employers are wondering how COVID-19 may affect the workplace. It is never too soon to begin preparedness measures to manage in this ever-changing climate. The lawyers at Devry Smith Frank LLP can assist. Symptoms and Transmission – fever – cough – difficulty breathing – Pneumonia In severe cases, the infection can lead to death. There does not yet exist a vaccine to prevent COVID-19. Health officials have advised Canadians to take everyday preventative actions such as avoiding close contact with people who are sick, washing hands often with soap and water, social distancing, avoiding unnecessary travel, and self-isolation when feeling ill. Workplace Safety and Legal Concerns At the time of this writing, an employee who has COVID-19 or is in self-isolation as a result of possible exposure to the virus, is afforded the same discretion and is subject to the same procedures as an employee who is unable to work due to illness. In Ontario, the Employment Standards Act, 2000 provides that an eligible employee is entitled to take three days of unpaid sick leave for personal illness, injury, or medical emergency per calendar year. If however, an employee is refusing to work due to a fear of contracting COVID-19 in the workplace, the employer must respond in compliance with its legal duties under occupational health and safety legislation. In addition, under provincial workplace health and safety laws, employers have an obligation to take every reasonable measure to ensure a safe workplace. In the face of this pandemic, employers should consider the degree by which their business could be disrupted, review and update workplace policies pertaining to transmittable illnesses, and assess the relevant legislation to ensure that they are aware of any probable legal consequences of any steps they may take. How Employers Should Prepare • encouraging good hygiene, including handwashing • maintain good ventilation in the workplace • have up-to-date sick or leave policies that are clearly communicated to staff • encourage employees to stay home when they are sick • allow for employees to work at home or in staggered shifts should they develop symptoms • have a policy which requires individuals with flu symptoms to stay at home and not to report to work — this includes workers, contractors and visitors. If you require further information or have any concerns relating to COVID-19, contact human rights and 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 LawFebruary 6, 2020September 30, 2020