Do I still have to let my kids travel with my ex for March Break amid COVID-19? We are all aware of the current COVID-19 pandemic. Yesterday, the Ontario Government announced the closure of all publicly funded schools for two weeks following March Break, which is set to commence this Monday, March 16th. March Break tends to be one of the busiest travel seasons… but not so much this year. While most of us with travel plans have made the decision to cancel or reschedule, others are taking advantage of the cheap cost of travel and have decided to take the risk and travel anyway. So what happens if your ex-partner is insisting upon taking your children away for March Break during his or her parenting time with the kids? Do they have to go? Do you have to sign the travel consent form as required by many international laws and custom officials? The short answer: no. But you should be aware that if you do refuse to sign a travel consent form allowing your children to go on vacation with your ex, he or she may bring forward a Family Court motion, seeking to dispense with your consent to travel. When a parent is unreasonably withholding consent, the travelling party tends to be successful on this type of a motion, so long as the proposed travel is in the child’s best interests. But, in this time of COVID-19, it will likely be very difficult for a Family Court Judge to find such travel to be in the child’s best interests. Not only does the child risk being quarantined in the foreign jurisdiction amid increasing coronavirus concerns and border shutdowns, there is the very real and additional risk that child may actually contract the virus. Even if your child isn’t quarantined while away or ill with the virus, it is highly probable that he or she will be quarantined upon return to Canada. This would mean you – the non-travelling parent and presumed healthy one – wouldn’t be able to see your child for the entire quarantine period. On top of that, there is a chance that the “self-isolation period” for your child could extend past the school shutdown ordered by the Ontario Government. A prolonged absence from school could negatively impact the education of children who need additional assistance in school (exceptional pupils). This is a factor a judge will consider if asked to decide whether or not to allow a trip. Whenever you go to Family Court, it is important to make sure you have evidence to present to the judge about what truly is in your child’s best interests. All of these considerations suggest that travel outside Canada is currently not in a child’s best interests (even though it in normal circumstances, most judges tend to support children travelling). So say NO to travel… for now. By Fauzan SiddiquiBlog, COVID-19, Family LawMarch 13, 2020September 30, 2020
5 Tips to Keep in Mind When Buying your First Home or Condo Congratulations, you have decided to purchase your first home. Although this milestone can be very exciting, the home-buying process can also be a daunting experience. Mapping out the journey beforehand can help a great deal. It is essential that you retain a lawyer who specializes in real estate and who can guide you throughout the process. YOU WILL NEED TO PAY CLOSING COSTS Remember, upon the closing of your property, a buyer is required to pay certain closing costs. You must be able to access sufficient funds to pay these closing costs. Closing costs include: Legal fees and disbursements; Land Transfer Tax (Municipal and Provincial Land Transfer Tax); Title Insurance; Property and Fire Insurance; Home inspection costs; Appraisals; Interest adjustments; and Other adjustment costs. MORTGAGE PRE-APPROVAL If you intend to fund your new purchase with a loan from a mortgage lender, ensure you obtain preapproval before or during the home-buying process. An agreement of purchase and sale can be conditional on a buyer obtaining satisfactory mortgage funds to complete the transaction. Failure to pay the purchase price on closing can result in the vendor terminating the transaction, seek forfeiture of the deposit monies and commence an action for damages suffered. YOU MAY BE ELIGIBLE FOR THE FIRST-TIME HOME BUYER INCENTIVE The First-Time Home Buyer Incentive enables first time home buyers the opportunity to reduce their monthly mortgage payment without increasing their deposit. You must meet the following criteria to qualify: must meet the minimum down payment requirements; your income cannot be more than $120,000 your total borrowing is limited to four times the qualifying income IF YOU ARE A NON-RESIDENT OF CANADA, DON’T FORGET THE NON-RESIDENT SPECULATION TAX Non-residents of Canada that purchase property are subject to a 15% Non-Resident Speculation Tax (“NRST”) on the purchase of a residential property if they live in the Greater Golden Horseshoe Region. This includes the City of Toronto, York Region, and Peel Region, in addition to other regions in Ontario. There are exceptions for some non-residents, where they would be exempt from paying the NRST. If the non-resident is not eligible for an exemption to the NRST, there are also rebates for which some non-residents can apply. However, obtain legal advice first to ensure you are staying compliant. FIND A REAL ESTATE LAWYER THAT YOU TRUST TO DECREASE THE RISK OF POTENTIAL PROBLEMS Retaining the services of a real estate lawyer will help reduce the risk of potential problems on closing. Among other things, a real estate lawyer will clarify your obligations as expressed in the agreement of purchase and sale, search title to the property for any unwanted encumbrances and explain the contents of all documentation to be signed on closing. Ultimately, lawyers who specialize in real estate can offer you peace of mind during the home buying process. If you would like more information or legal advice regarding the home buying process, please contact real estate lawyer, Louis Gasbarre at 416.446.3318 or louis.gasbarre@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, Real EstateMarch 11, 2020July 5, 2023
Pending Immigration Application? Don’t Delay Biometrics Collection As part of most work/study permits and visitor visa applications, applicants are required to give biometrics. Biometrics consist of the collection of fingerprints and a photo at a Canadian visa application centre (VAC). In most cases, applicants are required to give biometrics outside of Canada prior to issuance of their temporary travel document and/or permit. Immigration, Refugees and Citizenship Canada (IRCC) will normally send applicants a biometrics collection letter sometime after their application has been submitted. The letter will provide instructions on how to get biometrics and provide a 30-day timeframe within which to complete this step. Failure to do so within the prescribed time can lead to a rejection of the application in question. It is essential that applicants locate and contact a VAC (in their home country or any other country they may be in temporarily) quickly upon receipt of the letter from IRCC. Most VACs require appointments and can be facing backlogs that could lead to delays for applicants trying to get their biometrics done in a pinch. It is good practice to make an appointment as soon as possible. Remember to take the biometrics collection letter and passport with you! The VAC will need this to locate the applicant in their system and complete biometrics. “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, ImmigrationMarch 6, 2020September 30, 2020
17 year old, Driven to Therapy Without Parents’ Consent A 17-year-old High school student was driven to therapy appointments by the school chaplain without parents’ permission. Is this even legal? This question touches on a lot of rights of adolescents under Ontario’s Health and Education Laws. To start, in almost every situation, someone who is 17-years-old has the right to go to therapy without parental consent. The work of both psychologists and psychotherapists is covered by Ontario’s Health Care Consent Act, 1996 (because those are both self governing health professions). Under section 4 of the Health Care Consent Act, every person is presumed to be able to understand the information relevant to treatment and the consequences for making a treatment decision. There are no age limits on what “person” means, so everyone is entitled to make their own health care decisions (including therapy decisions.) The only exception to this is where the health care professional has reasonable grounds to believe that the person does not have that understanding. A young child or a person with a serious mental illness or a developmental delay may not be able to have that understanding. But, unless the health care professional believes there is a problem, any person, including a child, can consent to treatment, including psychotherapy. It is also important to note that section 15 of the Health Care Consent Act, 1996 recognizes that a person (including a child) can have the required understanding to consent to one type of treatment even if he or she cannot understand others. The impact of the Act is that a child can direct the treatment he or she understands, even when there are treatments the child does not understand. Check out this page for more about children directing their own health care. Note that leading institutions, such as the Hospital for Sick Children (“SickKids”) are very careful to respect the rights of children to direct, or participate in directing their treatment. Additionally, some practice areas, such as Adolescent Medicine Specialists, usually assist older children without the involvement of their parents. So, a child getting therapy without a parent’s permission is not “against the law.” The Code of Ethics for Canadian Psychologists is consistent with Ontario Law. It does caution psychologists to be careful around vulnerable groups and people who may not have the capacity (such as children), especially when there are multiple people involved in the therapy or aspects of it. But, that is not the case here. The Professional Standards of Practice for Registered Psychotherapists in Ontario specifically reference the Health Care Consent Act, 1996 and adopt its principals. So, the therapist did not do anything wrong either. Family Law does not apply to your chaplain because he or she is not acting as your parent. It does not give your parents a right to interfere with your therapy either. Ontario’s Children’s Law Reform Act addresses custody rights when parents are separated. Section 18(2) of that law says the custody provisions apply to children up to the age of 18. The term custody, which will soon no longer exist under Canadian Law, includes the right to make medical decisions. However, that law does not supersede the rights of the child under the Health Care Consent Act, 1996. Section 74(2) of the Child Youth and Family Services Act allows Children’s Aid Societies to intervene when a child is not receiving treatment to prevent the child from suffering harm. That section explicitly states that the Society is not able to intervene when a child has the capacity to make treatment decisions under the Health Care Consent Act. Although, there have been court cases where the Children’s Aid Society has challenged whether the child has capacity. The Chaplain is not a member of any recognized self-governing profession and is either an employee or a volunteer with the school board or school. Things are little greyer there. Since you agreed to go with the Chaplain, she was not kidnapping you or otherwise committing a criminal offence, but it is not clear that taking you out of school is permitted by the Education Act. Under section 21 of the Education Act, every person between the age of 6 and 18 is required to go to school every school day. Under section 21(5) of the Education Act, it is the duty of parents to make sure their children do attend school. The Education Act does provide some excuses for not attending school, one of which is because the student is “unable to attend school by reason of sickness or other unavoidable cause.” Your circumstances may or may not have met that criteria. But, the duty of your parents to make sure you attend school probably gives them some right to have a say in whether you can “skip school”. That they were not informed at all, might be a problem. Depending on which School Board your school belongs to, there may be School Board Policies or insurance requirements that prevent a school employee or volunteer from transporting a student for a non-school related matter. That could get your Chaplain into trouble with the Board. And might have led to bigger trouble if there had been a car accident. However, those would have been internal School Board issues and not necessarily legal ones – unless the Board decided to fire your Chaplain. Under Health Law, Family Law and Education Law, your Chaplain did not do anything that was clearly illegal. And, it may have been the right thing to do for you. “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, Family LawMarch 3, 2020September 30, 2020
Maximizing the Benefit of a Post-graduate Work Permit Often international students come to Canada with plans to make Canada their home after graduation. For many, this is a very real option. Students graduating from qualifying Designated Learning Institutes (most major universities and colleges will qualify) will be entitled to apply for a post-graduate work permit for up to three years. The exact length of their work permit will depend on the length of their study program. It’s important to note, however, that post-graduate work permits are a one-time shot. They cannot be renewed. More importantly, is that they start the clock running on a coveted period of time that an international student can start to accumulate Canadian work experience. For students with little to no foreign work experience, this Canadian work experience will often be the defining factor in whether they will qualify for permanent residence under Canada’s Express Entry system. All too often, students graduate and either return home or travel outside of Canada for some period of time, take time off while they decide what they want to do next, or take casual part-time jobs instead of positions in their intended fields. This can be a mistake for many who will eventually need to demonstrate that they have accumulated one year of full-time work experience in a skilled vocation in Canada in order to qualify under Express Entry. Many international students lose the ability to benefit from the golden opportunity of the post-graduate work permit. It is essential that international students think well ahead of graduation about where they can secure fulltime, permanent and meaningful work in a position that will lend itself to points under the Express Entry system. If you would like more information or legal advice on visiting, working or studying in or moving to Canada, please contact Maya Krishnaratne at 416.446.5841 or maya.krishnaratne@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, ImmigrationFebruary 25, 2020September 30, 2020
What Effect Will My Social Media Presence Have on My Personal Injury Claim? A large percentage of the world’s population now uses social media – whether we are sharing, tweeting or simply just spectating, this fast-growing phenomenon is becoming increasingly popular and in some cases has proven to dominate the way in which people communicate. With that being said, social media is now being used by more insurance defence lawyers with the intention of challenging personal injury claims. Photos, videos and commentary taken from social media accounts such as Facebook or Instagram, have the potential to damage a claimant’s case. Being aware of those risks and taking appropriate measures may help protect one’s credibility in a claim. In Ontario, compensation can be sought for personal injuries caused by the assault or negligent actions of others. A personal injury claim may be crucial for obtaining compensation for things such as pain and suffering, loss of income and any out of pocket expenses for medical, self-care and assistance. Many of these cases however, often revolve around credibility. From the first notice of a potential claim, insurance companies search for information about the claimant. Typically, social media is the initial stop for the insurers and can be used to the detriment of the claimant. Additionally, an insurer will often conduct a search to gain insight into any claims the claimant may have pursued in the past. The first suggestion a personal injury lawyer may tell you is to be conscientious of the information you share on the internet. That information may appear years later and could be used in ways you would have not necessarily thought of at the time. In fact, it would be safe to assume that whatever you share can be looked at by your employer; your employer’s clients; a banker looking to determine whether a loan to you is appropriate; and of course an insurer looking to assess the validity of a claim of a person advancing a personal injury lawsuit. Avoiding social media altogether is the best way to avoid the possibility of information being used against you. If that is not possible, follow the tips below: 1. Wait until the conclusion of the claim before using social media. 2. If you must continue using social media, always have second thoughts about the content of your post: skydiving on vacation is probably not the best activity to demonstrate limitations and disability! 3. Ensure your social media pages are set to private and you only accept friend requests from people you know. With that being said, even with higher security settings, social media can still be accessible. Furthermore, there is case law in Ontario that suggests that private information meant for your family and friends is producible in a claim by court order. A master or judge may order production of your photos or comments and check-ins if the content is considered inconsistent with the claims advanced. Social media is free surveillance that insurers are quick to capitalize on. Imagine a photo of a claimant raising a glass of alcohol in a toast at a party or concert despite the pain of a torn shoulder; or leaning in the hood of a car that is being repaired by a girlfriend (but it sure looks like the claimant is repairing his car); or a week before a trial a claimant’s fiancé posts a photo on an open Facebook account of her fiancé being pulled behind a boat on a parasail! These are actual situations that are taken out of context by insurers but can seriously damage a case. Before making a personal injury claim, talk to a lawyer. At Devry Smith Frank LLP, we understand personal injury law and endeavour to always ensure our clients receive the full compensation they deserve and are informed on how to maximize the chances of their case succeeding. To learn how we can help you, or to schedule a FREE consultation, contact experienced personal injury lawyer, Marc Spivak at marc.spivak@devrylaw.ca or 416-446-5855. “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, Personal InjuryFebruary 21, 2020July 5, 2023
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
Resignation & Notice Periods: What is Required? THE BASICS Many readers will be surprised to learn that the obligation to give notice of termination of employment is two-sided. The requirement that an employer give advance notice to an employee is well known. Just as the company is obliged by law to do so, the employee has the same legal obligation when resigning from a job. This is not as well known or understood. The damage claim an employer may make against an employee who fails to give proper notice is considerable. Take, for example, an extreme situation to illustrate the principle. A senior marketing vice-president of a large company is in the middle of presenting a bid for a major contract in a competitive market. The contest is down to two finalists. His presence is critical to the success of the bid. He resigns abruptly prior to the final presentation, and his company loses the bid. The employer may well successfully argue that the sudden departure of its key executive led to the loss of this opportunity. Its damage claim may well be the potential increase in profits associated with this contract. The amount of notice required will vary with the situation. In a case such as the one described above, the employee’s notice obligation may be as much as six months. In real life, this type of claim is rare. When it is made, it is usually accompanied by allegations of stealing trade secrets or similar breaches of confidence. Nonetheless, such a claim is indeed possible and both sides must be aware of this issue. CONTRACTUAL TERM Just as an employment contract may set out the terms with respect to termination in advance, a contract can also include a term dictating the notice required upon resignation. Such a term could even stipulate the expected damage claim the employer may suffer where there has been a violation, as long as it is reasonable. This may be appropriate where the employer commits to an expensive period of intensive training for the new hire and wants an assurance, in turn, from the employee that they will remain employed for a certain time period to rationalize this expense. The term may even include some form of compensation for the training where there has been a breach. UNILATERAL RESIGNATION Generally, when an employee delivers a voluntary resignation that is in turn accepted by the employer, a contract is made in which both parties have agreed to the notice period provided. There can be exceptions to this general rule as occurred in one recent case, English v. Manulife Financial Corporation. In this instance, the employee retracted their resignation which was refused by the employer. The Court of Appeal found that the employer had not closed the door to the employee rescinding her resignation and was clearly sympathetic to the employee’s mistaken decision to resign. TAKEAWAYS FOR EMPLOYEES AND EMPLOYERS The issue of how much notice is required upon resignation is determined based on the context of the situation. Courts will examine how vulnerable the employer was to damages arising from a sudden resignation, and how much time would be required to locate and train a suitable replacement. It is not a mathematical formula that can be applied the same way across the board. Generally speaking, most companies will not demand a long advance period of working notice. Often, the best course of action for an employee looking to resign on good terms is to negotiate a reasonable notice period with their employer. Once the two parties agree to the period of working notice, an agreement has then been made. Should the employee break this contract, then there could be a damage claim asserted by the company for its proven consequential losses. If the employer terminates the agreement by asking the employee leave before the end of the notice period, then the employee could claim the statutory minimum sums and the balance of the resignation period, if greater. GET ADVICE BEFORE YOU ACT It is always recommended to seek advice from an experienced employment lawyer before taking action that may result in a claim for damages. Contact Elyse Mallins of Devry Smith Frank LLP for advice for both employees and employers on legal workplace issues. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJanuary 29, 2020July 5, 2023
How Do I Convince a Family Court Judge That My Ex-spouse Is Incapable of Being a Good Parent? Differential parenting styles can have a negative effect on the family and is a frequent cause of separation or divorce. With that being said, concerns about the changes in a spouse’s behaviour can also lead to the end of the relationship, ultimately causing stress, anxiety and for one party to believe the other is incapable of being what they believe to be a good parent. Encompassing all of these concerns could also mean one parent may prevent the children from having regular contact with the other parent. However, voluntarily leaving the matrimonial home and taking the children, or otherwise acting unilaterally will indisputably create a very unfavourable position for one parent in family court. If children are going to be denied post-separation contact with a parent, then invariably, the parents will be heading to family court – perhaps on an emergency motion to restrict or allow a parent to have parenting time. Any parent going to family court on the premise of an emergency motion has to convince the judge that there is reason for this request. It is imperative that the reasoning behind the petition is compelling enough for the judge to agree. Here are some tips on how to obtain the correct parenting order: Family court judges typically aren’t interested in how one parent feels about the other parent – even if that parent has been wronged. Ontario (and Canadian) Family Law stipulates that the child’s best interest is the only factor to be considered. A parent who is focused on the children’s perspective and best tells the judge what the children need will be the parent who succeeds. The parent who appears to be focused otherwise, will lose. 1. Parents have to base their case on evidence, not speculation, no matter how incompetent one parent believes the other parent may be. Judges only take into account what the evidence shows. Judges will not base a decision on suspicions unless there is some evidence those suspicions are correct. 2. If a parent has not displayed evidence of bad parenting, there is no basis on which a judge can rule that he or she is a bad parent. The only exception to this is where there is objective evidence (not just the other parent saying) that a parent has threatened to harm the children or has expressed comments that sound like he or she might allow the children to be in harms way. 3. Judges view parents who try to undermine a child’s relationship with the other parent as a bad parent. They believe it shows poor judgment. So, if there are texts, social media posts, instant messages, emails or other evidence of a parent conveying damaging things about the other parent, that can assist the judge in making a determination. 4. Domestic violence, against any family member, is also a sign of bad parenting. Section 24(4) of the Children’s Law Reform Act specifically requires a judge to consider all forms of domestic violence when evaluating parenting. However, judges will not tolerate any party who makes false or exaggerated claims of domestic violence to gain an advantage in family court. 5. Finally, it is almost certain that a judge will view a parent who defies court orders, or will not cooperate with a parenting coordinator, as a bad parent. But again, a judge will not assume that a parent will breach a court order unless there is some evidence of the parent doing so in the past or there is clear of evidence of the parent’s intention to breach an Order. The key to convincing a judge, even on an emergency motion for child custody, is to have evidence of a parent’s bad parenting and to express those concerns from the child’s perspective – how do the concerns negatively impact the child. Once that is established, it is important to tell the judge, in light of the parenting concerns, what parenting arrangement is in the child’s best interest so the judge can order it. Protecting the well-being of your children should always be your top priority. For assistance, contact certified specialist in family law, John P. Schuman of Devry Smith Frank LLP. Contact him directly at 416-446-5080 or email john.schuman@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, Family LawJanuary 28, 2020September 9, 2022
How Do I Obtain a Copyright? INTRODUCTION TO INTELLECTUAL PROPERTY Intellectual property is a dynamic area of law that continues to be at the forefront of innovation, and continues to develop. Intellectual property is the legal right to ideas, inventions, and creations in the artistic, literary, industrial, and scientific fields. It also covers symbols, names, images, designs, and models used in business. Intellectual property is distinguishable from physical property in that physical property is tangible whereas intellectual property does not have a physical presence and therefore cannot be touched or grasped. The three most common types of intellectual property are: (1) copyrights; (2) trademarks; and (3) patents. This blog focuses on the law surrounding copyrights. COPYRIGHT What is copyright? In simple terms, a copyright gives one the right to copy. A person that holds a copyright has the sole right to produce or reproduce a work or a substantial part of the work in any form. Copyright includes the right to perform the work or any substantial part of it. If a person’s work is unpublished, copyright entitles that person to publish the work or any substantial part of it. What does copyright protect? Copyright protects a person’s original artistic, dramatic, musical, and literary creations, and therefore prevents the creation from being legally copied, performed, or broadcast without the creator’s permission. It also protects software that is original. Importantly, copyright protects the expression of an idea, rather than protecting the idea itself. It is therefore unsurprising that copyright affects artists, athletes, and entrepreneurs, all of whom might express ideas in vastly different ways, but are nevertheless equally deserving of protection. Copyright commonly protects the following kinds of creative works: literary works, such as books, pamphlets, and computer programs; dramatic works, such as films, plays, screenplays, and scripts; musical works, such as musical compositions; and artistic works, such as paintings, drawings, and photographs. Copyright also protects sound recordings, radio waves, and performers’ performances. Why is it important to register one’s copyright? Copyright exists automatically once a person creates an original work or other subject-matter, provided certain conditions in the Copyright Act are met. A person’s creation thus receives some copyright protection even without registering it at the Canadian Intellectual Property Office. However, when one registers its copyright and subsequently receives a certificate of registration, the certificate provides proof that the copyright exists and that the person registered is the owner of the copyright. Proof of copyright can help to prevent lengthy court disputes in the future. How long does copyright protection last? Copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year. This includes sound and video recordings, books, songs, poetry, and more. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer to obtain a copyright or have general questions pertaining to intellectual property law, please contact intellectual property lawyer, Frank Shostack at 416-446-5818 or frank.shostack@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, Intellectual PropertyJanuary 8, 2020September 30, 2020