How Long Can I Wait To Look For A New Job?

How Long Can I Wait To Look For A New Job?

Every employee suing for wrongful or constructive dismissal is required to mitigate his or her losses by taking reasonable steps to search for new work. This duty to mitigate is a topic that I have written about on several occasions.  You can find links to these articles here and here.

A question that I am asked from time to time by clients is how long can one wait before beginning the search for new employment.  Ideally, the search should begin right away, not long after the employment relationship has been terminated by the employer.  However, the courts will allow some latitude, affording an employee some time to gather himself or herself before beginning the search for another job.  This was addressed in the decision in Samuel v. Benson Kearley IFG.

In this wrongful dismissal action, the employee waited four months before beginning the search for a new job.  According to the employee, the shock and distress of losing her job prevented her from looking for another position, although she did not seek medical attention during that period of time.  The employer, on the other hand, found 38 comparable positions that were available over that four-month period that the employee could have applied for.

In his decision, Justice Charney concluded that the employee failed to take reasonable steps to mitigate by looking for new work over the course of that timeframe.  In reaching this decision, he wrote, “While I understand that the shock of losing one’s job might result in some delay before a job search begins, in the absence of some medical evidence to corroborate her claim, I am unable to accept her assertion that the “shock and distress” of losing her job prevented her from actively searching for a job for as long as four months.”

In the result, Justice Charney reduced the employee’s damages for pay in lieu of notice by one-third, from six months to four months.

The takeaway for employees is that unless one is suffering from mental distress that is beyond the usual upset that comes with the loss of employment and is medically supported, it is generally not a viable excuse for commencing the job search.  The takeaway for employers is that, in the face of a wrongful or constructive dismissal claim, it is generally a good idea to keep track of similar positions that are available in the job market.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Publicly Placing A Person In False Light

Publicly Placing A Person In False Light

 

The COVID-19 pandemic forced millions across the province to work or study from home.  In order to use videoconferencing or virtual classrooms, a stable internet connection is needed.  While the internet has become an indispensable tool for most Ontarians, we are all well-aware of how it can also be used to harm others.

The law has recognized and addressed this, not only in the area of criminal law, but also in the area of tort law.  Several years ago, I wrote about the tort of intrusion upon seclusion, or invasion of privacy.  A link to that article can be found here.

Late last year, the Superior Court of Justice released a decision that further clarified how the tort of intrusion upon seclusion is but one part of a four-tort catalogue that makes up invasion of privacy.  These four torts include:

  1. Intrusion upon seclusion or solitude into another’s private affairs;
  2. Public disclosure of embarrassing private facts of another;
  3. Publicity which places another in a false light in the public eye; and
  4. Appropriation, for one’s advantage, of another’s name or likeness.

In this decision, Yenovkian v. Gulian, another tragic family law case, the father was found to have made serious allegations online about the mother and her family over an extended period of time.  Such allegations included that the mother was a kidnapper who abused and drugged the children, who forged documents and defrauded the government.  The court found each of these allegations to be false and held the father to be liable for the tort of publicly placing another in a false light.

As stated in paragraph 170 of the decision, the requirements to satisfy this tort are as follows:

  1. The false light in which the other was placed would be highly offensive to a reasonable person; and
  2. The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

This tort also has a lower evidentiary burden than a claim for defamation of character.  In support of this, the trial judge wrote, “while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.” (Emphasis added)

As a result of the father’s wrongdoing, the mother suffered mental distress that manifested itself in a visible and provable illness.  In assessing the mother’s damages, the  trial judge considered the following factors:

  • The nature of the false publicity and the circumstances in which it was made;
  • The nature and position of the victim of the false publicity;
  • The possible effects of the false publicity statement upon the life of the plaintiff; and
  • The actions and motivations of the defendant.

In the result, the trial judge awarded the mother damages for mental distress in the amount of $50,000.00, plus damages for invasion of privacy in the amount of $150,000.00 as well as punitive damages in the amount of $150,000.00.

Not surprisingly, the trial judge also awarded the mother sole custody of the two children and a restraining order against the father.  The father was entitled to supervised access on a graduated basis only.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

 

What Am I Entitled To In A Wrongful Dismissal Claim?

What Am I Entitled To In A Wrongful Dismissal Claim?

Most of the time, when a client comes to see me about a wrongful dismissal, the client tells me, “I only want what I am entitled to.”  However, most of the time, the client does not really know what he or she is entitled to in damages or compensation.  The Court of Appeal’s decision in O’Reilly v. IMAX Corporation provides a useful summary of what a wrongfully dismissed employee can expect.

The issue in this appeal concerned the employee’s entitlement to exercise stock options, receive bonuses and take advantage of other aspects of his remuneration package during the period of reasonable notice following a termination without cause.  This is an issue that is not as clear as one might expect.  In a footnote to this decision, the Court of Appeal indicated that it heard appeals dealing with this issue four times in 2019.

To clarify the analysis of this issue, the Court of Appeal summarized the following principles at paragraph 32 of the decision:

  1. A wrongfully dismissed employee is entitled to damages for the loss of wages, salary and other benefits, that would have been earned during the reasonable notice period.
  2. This principle applies to bonuses, stock options, or incentives that are an integral part of the employee’s compensation, as well as pension benefits that would have accrued or been earned during the reasonable notice period.
  3. In considering whether the loss of such benefits is recoverable, the court undertakes a two-step analysis.
  4. The first step requires a determination of the employee’s common law right to damages for breach of contract, bearing in mind that the measure of damages is the amount to which the employee would have been entitled had the employer performed the contract.
  5. The second step requires the court to determine whether the terms of the relevant contract or plan unambiguously alter or remove the employee’s common law rights, having regard to the presumption that the parties intended to apply the law, in the absence of clear language to the contrary.

This last principle operates in a similar fashion to a notice provision or termination clause in an employment contract.  More information on this topic can be found here.

In short, the language in the document must be clear and unambiguous in taking away the employee’s common law entitlements.  Otherwise, the employee is entitled to receive compensation for the value of every aspect of his or her remuneration package over the course of the period of reasonable notice.

In dismissing the employer’s appeal, the Court of Appeal concluded that the language used in the employee’s remuneration plan did not unambiguously remove his right to damages for the loss of his stock option that would have vested during the reasonable notice period.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.
Update on Termination Clauses from the Court of Appeal

Update on Termination Clauses from the Court of Appeal

Termination clauses or notice provisions in employment agreements are an area of employment law that continues to develop at a rapid pace.  These provisions attempt to limit the amount of notice, or pay in lieu thereof, that an employee might be entitled to upon dismissal.  My previous article on this topic can be found here.  Recently, the Court of Appeal expanded the case law on the enforceability of such provisions in Waksdale v. Swegon North America Inc.

In this decision, the employer conceded that the “with cause” termination clause in the employment contract in question violated the Employment Standards Act, 2000.  Conversely, the employee agreed that the “without cause” termination clause did not violate the Employment Standards Act, 2000.  This was particularly unusual because it is normally the “without cause” termination clause that is under attack by the employee on the basis that the clause is an illegal attempt to contract out of the minimum entitlements under the legislation, something specifically prohibited under section 5 of the Act.

However, in this case, the employee argued that despite the legality of the “without cause” provision, the illegality of the “with cause” provision rendered all of the termination provisions unenforceable.  As a consequence, the employee was entitled to not just the minimum standards under the legislation, but also damages for reasonable notice at common law.

The Court of Appeal agreed with the employee and stated at paragraph 10:

An employment agreement must be interpreted as a whole and not on a piecemeal basis. The correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA….

While courts will permit an employer to enforce a rights-restricting contract, they will not enforce termination provisions that are in whole or in part illegal….

Here the motion judge erred because he failed to read the termination provisions as a whole and instead applied a piecemeal approach without regard to their combined effect.

The Court of Appeal also rejected the employer’s argument that the illegal “with cause” provision could be severed, leaving the rest of the termination clause enforceable.  In its reasons, the Court of Appeal stated at paragraph 14 that a clause purporting to sever an illegal clause “cannot have any effect on clauses of a contract that have been made void by statute.”

In the result, the Court of Appeal ordered that the matter return to the lower court for an assessment of damages.

As I mentioned in my previous article, the takeaway, particularly for employers, is that a termination clause that attempts to limit an employee’s entitlements to the minimum standards set out in the legislation must be drafted with great care to ensure that no part of the clause is an attempt to contract out of the legislation under any and all circumstances. The risk is that the termination clause may be deemed unenforceable and the employee may be entitled to common law notice regardless.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

COVID-19: Legislative Changes for Employees and Employers

COVID-19: Legislative Changes for Employees and Employers

 

We have heard it repeatedly from the media and our political leaders.  These are unprecedented times.

Since the government-ordered shutdown of all businesses and services that were deemed to be non-essential, the financial well-being of millions of Canadian employees – as well as the companies they work for – have been severely impacted.   In an effort to address these challenges, governments at the federal and provincial levels have swiftly enacted a variety of legislation directed at employees and employers.  The following is a summary of some of these legislative changes.

Closure of Non-Essential Businesses

Ontario Regulation 82/20 is an Order in Council made under section 7.0.1 of the Emergency Management and Civil Protection Act that requires the temporary closure of all non-essential businesses and establishes the list of essential businesses that can remain open.  That list, set out in Schedule 2 of this Regulation, may be found here.

The list includes sectors such as supply chains, financial services, telecommunications, transportation services, agriculture, energy, health care and social services.  It was last updated and shortened effective April 5, 2020.

For the sake of clarity, subsection 1(3) of the Regulation does not preclude non-essential businesses from operating remotely, providing goods by delivery or pick-up, or providing services online or by phone or other remote means.

Emergency Leave

Employees who are not affected by the closure of non-essential businesses may be entitled to take an emergency leave from work.

The province’s Employment Standards Act, 2000, was amended to add section 50.1 which now provides for an unpaid leave of absence as a result of a declared emergency under the Emergency Management and Civil Protection Act or an infectious disease like COVID-19.  This kind of leave is available to employees who are under medical investigation or treatment for COVID-19 or are looking after a family member as a result of the state of emergency, among other reasons.  A link to the legislation may be found here.

This leave is retroactive to January 25, 2020 when the first presumptive case of COVID-19 was discovered.  Although the employer may ask for reasonable evidence of the need for the leave, the employee is not required to obtain a medical certificate.  It should be noted that there is no fixed duration for such a leave such that it may continue for as long as the state of emergency continues.

Canada Emergency Response Benefit (CERB)

The federal government’s legislative response to the pandemic was the COVID-19 Emergency Response Act.  A link to this legislation may be found here.

Part 2 of this Act is the Canada Emergency Response Benefit Act which provides a benefit that we have now come to know as the CERB.  This taxable benefit provides $2,000.00 every 4 weeks for up to 16 weeks for workers who have lost income due to COVID-19.

It is available to Canadian-resident workers 15 years old and above who are earning less than $1,000.00 per month and have earned at least $5,000.00 in the last year.  The benefit is not available to those who have lost income due to a resignation from employment.

The worker’s circumstances determines how the application for this benefit is submitted. For those who are self-employed, the application for this benefit may be submitted through the Canada Revenue Agency via the link found here.  Employees, on the other hand, may apply through Service Canada via the link found here.

Canada Employment Wage Subsidy (CEWS)

For those employers who are able to continue operating, whether at full capacity as an essential business or partially as a non-essential one, their single largest expense is often the wages of their employees.  During this pandemic, the federal government has implemented the Canada Employment Wage Subsidy or CEWS to assist employers in managing this expense.

This program is administered by the Canada Revenue Agency under the authority of the Income Tax Act and provides a 75% wage subsidy to employers who are not public bodies such as municipal corporations, universities and colleges, and hospitals.

Covering a period between March 15 and June 6, the CEWS subsidizes the greater of:

  1. 75% of an employee’s remuneration up to $847.00 per week; and
  2. the lesser of an employee’s renumeration up to $847.00 per week and 75% of the employee’s average weekly remuneration between January 1 and March 15 (the pre-crisis period).

For example, if an employee’s weekly remuneration is $1,000.00, the CEWS would cover $750.00 which is the lesser of the maximum of $847.00 per week and 75% of $1,000.00 per week (as per paragraph 2 above).  By contrast, if an employee’s weekly remuneration is $1,200.00, the CEWS would cover $900.00 being the greater of $847.00 per week and 75% of $1,000.00 per week (as per paragraph 1 above).

Employers benefiting from the CEWS are expected where possible to maintain or top-up to the employee’s pre-crisis remuneration.

In order to be eligible, an employer must have suffered a year-over-year drop in revenue of at least 15% in March and 30% in subsequent months.  As an alternative to the corresponding month in 2019, employers may use an average of January and February 2020.

More information about the CEWS program may be found here.

Canada Emergency Business Account (CEBA)

In addition to the CEWS, the federal government introduced the Canada Emergency Business Account or CEBA.  This program is implemented by certain financial institutions in cooperation with Export Development Canada (EDC), a corporation wholly-owned by the Government of Canada and authorized by the Export Development Act.

Under the CEBA program, small businesses may apply to their current financial institution for interest-free loans up to $40,000.00 to help cover operating costs.  The program is available to Canadian businesses with a federal tax registration and a 2019 payroll between $20,000.00 and $1,500,000.00.

A noteworthy feature of the program is that it also provides for loan forgiveness of 25%, to a maximum of $10,000.00, where repayment is made before the end of 2022.

Details on the CEBA program may be found here.

Again, this is only a summary of legislative changes.  As we know, these changes occur rapidly as new programs are announced and rolled out, but I will endeavour to update this article with each significant measure taken by the federal and provincial governments, such as the recently-announced Canada Emergency Commercial Rent Assistance program or CECRA.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

COVID-19: Legislative Changes to Constructive Dismissal

COVID-19: Legislative Changes to Constructive Dismissal

As of May 29, 2020, the Ontario government has altered the law on constructive dismissal.

In Farber v. Royal Trust Co., the Supreme Court of Canada describes a constructive dismissal as “a fundamental or substantial change to an employee’s contract of employment.” In its subsequent decision in Potter v. New Brunswick Legal Aid Services, the Supreme Court further explains that a constructive dismissal occurs “when an employer’s conduct evinces an intention no longer to be bound by the employment contract”.

By contrast, Ontario’s Employment Standards Act, 2000 and its regulations do not provide a similar description or explanation, let alone a precise definition, of constructive dismissal.  In a now-archived webpage, the Ontario government states here that a constructive dismissal “may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent.”  Not surprisingly, the webpage further indicates that constructive dismissal “is a complex and difficult subject” and suggests that a person seeking more information about this area of law contact the Employment Standards Information Centre.

Generally, a reduction in remuneration or a lay-off (even a temporary one) would constitute a constructive dismissal – until now.

Prior to May 29, 2020, if an employee’s wages or hours were temporarily reduced or eliminated by the employer as a result of COVID-19, the employee could file a complaint with the Ministry of Labour’s Employment Standards branch, or commence a constructive dismissal action in the Superior Court of Justice.  However, on that date, the Ontario government enacted Regulation 228/20: Infectious Disease Emergency Leave which can be found here.

Section 7 of this regulation states:

7. (1) The following does not constitute constructive dismissal if it occurred during the COVID-19 period

1. A temporary reduction or elimination of an employee’s hours of work by the employer for reasons related to the designated infectious disease.

2. A temporary reduction in an employee’s wages by the employer for reasons related to the designated infectious disease.

(2) Subsection (1) does not apply to an employee whose employment was terminated under clause 56 (1) (b) of the Act or severed under clause 63 (1) (b) of the Act before May 29, 2020.

Section 8 of the regulation goes on to preclude a complaint to the Ministry of Labour because of a temporary reduction of wages or hours due to COVID-19.

Effectively, this means that a temporary reduction of wages or hours of work as a result of COVID-19 by the employer on or after May 29, 2020 would not be a constructive dismissal.  What is interesting about this change is that the legislation does not qualify or limit the meaning of “constructive dismissal” for the purposes of the Employment Standards Act, 2000 and its regulations only.

In other words, it appears that this regulation may also preclude a constructive dismissal action in the Superior Court of Justice based on a temporary reduction of wages or hours.  There are arguments both for and against this position, and there is no legal authority to provide guidance on this yet.

Constructive dismissal litigation can be risky.  These legislative changes make it more so. Any attempt to pursue such a claim during the COVID-19 period – which is defined to last until 6 weeks after the end of the state of emergency – should be made with caution.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

COVID-19 – Urgent Applications During the Pandemic

COVID-19 – Urgent Applications During the Pandemic

With the onset of the COVID-19 pandemic in March, courts across the province ceased operations almost entirely.  At present, in the Superior Court of Justice, the only civil cases to be adjudicated are those considered urgent in nature.  A link to the Notice issued by Chief Justice Morawetz setting out the various kinds of urgent matters may be found here.

Included among the list of urgent matters are requests for injunctions related to COVID-19.  For those unfamiliar with injunctions, an introductory article on this topic may be found here.  The recently released decision in Ontario Nurses’ Assn. v. Eatonville Care Centre Facility Inc. is one example where the Superior Court of Justice considered a request for an injunction related to COVID-19.

In this case, the Ontario Nurses’ Association (“ONA”) applied to the court for an injunction requiring several long-term care facilities to ensure that the nursing staff receive appropriate access to personal protective equipment (“PPE”) and allowing nurses to make PPE decisions at the point of care, as directed by the Chief Medical Officer of Health.

The long-term care facilities, in their responding materials, asserted that they had in fact complied with the directives of the Chief Medical Officer of Health.  They submitted that ONA’s Application for an injunction challenged the allocation of scarce but essential medical resources and was an attempt to control that allocation in the guise of point-of-care safety.

The Attorney General, acting as an intervenor in this case, pointed out that the subject matter of the Application was essentially a labour dispute between nurses and the long-term care facilities.  Although grievances under the collective agreements were filed, the court noted that the grievance process takes time and that the inability to expedite a labour hearing prompted the Application for the injunction.

The judge hearing the Application concluded that the court had an inherent jurisdiction under the Courts of Justice Act to determine the Application despite the pre-existing grievances commenced under the collective agreements.  Although there may have been an inspection process available under the Occupational Health and Safety Act, the judge concluded that it was not a substitute for an adjudicative process like the Application, particularly since inspections at the long-term care facilities were no longer conducted due to the pandemic.

In applying the three-part test for an injunction, the judge reached the following conclusions:

1) There must be a serious issue to be tried

The long-term care facilities did not dispute that the subject matter of the Application and the grievances represented a serious issue to be tried.  Hence, this part of the test was met.

2) The party seeking the injunction would incur irreparable harm if the injunction is not granted

Again, the long-term care facilities did not dispute that there was a risk of nurses suffering irreparable harm if the requested relief was not granted.  Thus, the second part of the test was also met.

3) The balance of convenience, taking into account the public interest, favours granting the injunction pending the determination of the grievances

The crux of the argument for the long-term care facilities was the “harsh reality that quantities of certain forms of PPE such as N95 masks are limited and in demand across the world, the allocation of those masks to one group may well lead to masks not being available to other health care workers working in equally risky circumstances.”  They argued that this balance must be taken into account.

On this part of the test, the judge concluded:

Under the circumstances, there is no prejudice to the respondents which outweighs the irreparable harms that could ensue to the Applicants.  Where the lives of nurses and patients are placed at risk, the balance of convenience favours those measures that give primacy to the health and safety of medical personnel and those that they treat.

In the result, the judge granted the injunction sought by ONA and ordered the long-term care facilities to provide the required PPE when assessed by a nurse at the point of care pending the final disposition of the grievances or further order of the court.

Of note is the fact that this Application was heard via videoconference, further illustrating how the need for expediency outweighed the procedural requirements of the collective agreements.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

Lawyers Using Technology to Continue Serving Clients during the Pandemic

Lawyers Using Technology to Continue Serving Clients during the Pandemic

Lawyers Using Technology to Continue Serving Clients during the Pandemic

The COVID-19 pandemic has changed everybody’s lives over the past months. It has certainly had a huge impact on the ability of people to obtain common legal services in the way they are accustomed.

Social distancing, self-isolation, and sheltering in place have put severe restrictions on lawyers’ ability to hold traditional office meetings. Also, the courts are currently closed to all but the most urgent types of cases and the limited hearings that are taking place are generally only by video conference with judges and lawyers interacting remotely.

Fortunately, thanks to technology many important legal processes can continue despite the current restrictions. Many lawyers now offer video conferencing and telephone meetings. In family law, lawyers have been conducting multi-party settlement meetings (with lawyers, clients and any other needed participants) using videoconferencing with everyone participating from their own home or office.

Contracts, including separation agreements or marriage contracts, can be signed electronically thanks to the Ontario Electronic Commerce Act, which has actually been in force for a number of years.

Electronic signatures are not, however, permitted for wills and powers of attorney. Since many people need to have these documents executed despite the current meeting restrictions, the Ontario government has recently made a temporary change to the legal requirements for the signing of wills and powers of attorney (POAs).

While electronic signatures are still not permitted on wills and POAs, the strict requirement that the person making the will or POA sign it in the physical presence of two witnesses, has now been relaxed. Instead the person signing the will or POA and the two witnesses (one of whom must be a lawyer or licensed paralegal) may all link up using video conferencing technology and each may sign a separate copy of the will in the virtual presence of the others with the result that the combined three documents will be recognized in Ontario as a properly executed will or power of attorney.

Marc A. D’Heureux

Lawyer

Marc A. D’Heureux Family Lawyer Durham Region

Author |Marc A. D’Heureux | Family Lawyer
Marc focuses his practice on family law. He has years of experience handling all aspects of family law including prenuptial agreements, divorce, child custody, support, and division of property.  Contact

Recording Your Spouse To Prove “Bad Behaviour” May Do More Harm Than Good To Your Children

Recording Your Spouse To Prove “Bad Behaviour” May Do More Harm Than Good To Your Children

Some parents may feel they can “prove” themselves to be the better parent, or that the other parent’s behavior is not in the children’s best interest, by recording their children, or the other parent, surreptitiously.   Is it worth it?

There have been many cases dealing with the issue of whether these recordings are admissible.  As with most issues in family law, the answer is dependent on the particular facts of the case.  In many cases, even if the recording would be admissible under the rules of evidence, a judge will exclude it because the prejudice outweighs its probative value.  By the time the argument is made at Court, the damage to the relationship with the children, and with the other parent, has already been done.

In the very recent DeGiorgio case, Justice Mackinnon talks about the “embarrassment to the child and the potential damage to the father-daughter relationship were (the daughter) to know that he was recording the episode for potential use in court.”[1]

In an emotionally fraught time, and often from a place of fear of losing the child, a parent may feel that the attempt to discredit the other, or prove what is perceived to be bad behavior in the other, is well-intentioned and ultimately in the child’s best interest.  This approach is not new, of course, as many an affidavit in family court is rife with examples of the other parent’s downfalls.  In certain situations, it is not only appropriate but necessary to inform the Court of actions that endanger the child, whether physically or emotionally.  But how that information is collected and shared, the context in which the situation happens, and the potential harm to the child must all be considered.

In this digital age, recordings are so easily captured and shared.  But we must remain vigilant as to the motivation behind the recording and the consequences of releasing the recording, particularly when the person making the recording intentionally does not inform those being recorded that it is happening.

[1] DeGiorgio v. DeGiorgio 2020 ONSC 1674 (SCJ) per Mackinnon J, para 36

 

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact

I Am Separated – Do I Need To Make Or Change My Will?

I Am Separated – Do I Need To Make Or Change My Will?

I am separated – do I need to make or change my Will?

I am always surprised at how many people do not have a Will, despite having children and significant assets.  Of course, facing our own mortality is not a pleasant experience and many of us delay and rationalize until something happens in our lives that forces the issue.  A loved one becomes ill or passes away, or their marriage ends and their family law lawyer raises the issue.  Certainly, this is one of the first issues I address when meeting with a family law client.  In short, a Will is an essential document which will almost certainly ease the burden for those you leave behind.

Dying without a will can have serious and unintended financial consequences.  If you are separated from your spouse, the consequences are likely to be even more significant.  You probably do not intend for your estranged spouse to inherit most or even all of your estate should you predecease him or her, but this is what is likely to occur if you do not have a Will.   You may be in the process of negotiating or litigating the division of family assets and you may not have given any thought to what happens to your share of the assets if you die before the division is complete.  No doubt you want your children or your parents or your dog to get your assets before your former spouse but, without a Will, you have no say.  Your property will be distributed pursuant to the Succession Law Reform Act which gives the surviving  spouse the first $200,000 and half of the remainder.  This may result in a significantly different division of assets than would have taken place in the family law proceedings. So, make a Will and then you have at least some control.

The reason you have only some control is that your spouse can elect to set aside the Will and proceed with a division of property under the Family Law Act as though both parties were still alive.  But that’s fine.  He or she has the same entitlement as if you were alive.  After your property is equalized under the FLA, your Will governs the distribution of your remaining assets.

Estate planning is an important part of #separation, #divorce, and #equalization.

Written by Simonetta Lanzi

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact

Will Covid-19 Change Your Equalization Payment?

Will Covid-19 Change Your Equalization Payment?

When married spouses separate or, in some instances, a common law relationship ends, one of the most significant issues the spouses will tackle is the division of property.   If the spouses were married, that division is determined by Part I of the Family Law Act (“FLA”). In short, the FLA provides for an equal sharing of the increase of the net assets which accumulated during the marriage.

Of course, the value of the assets to be divided may change after the date of separation, sometimes significantly.  If this happens before an agreement or order has been made which resolves the issue of property division, what happens? We are currently in the midst of the COVID-19 pandemic, which has resulted in the most significant upheaval to the world economy in living memory.  Stock markets around the globe are more volatile than they have been in decades.  The changes to the value of equity stocks in particular have been swift and substantial.  A spouse who has a portfolio which has lost significant value post separation due to the market forces caused by the pandemic is likely to question whether determining the division of property based on the date of separation value of his or her assets is fair.

The FLA provides for an unequal division of assets where it would be unconscionable to divide assets equally.  Of course, the million dollar question is, at which point does an equal division become unconscionable?  The leading case, a decision of the Ontario Court of Appeal, Sierra v. Sierra, provides some guidance on the factors to be considered, while reminding us that the threshold is very high.  In fact, very few decisions have been rendered in favour of the party seeking an unequal division.  However, in light of the unprecedented events of the past two months, perhaps the threshold should be reconsidered, even if only on a temporary basis.

The Court of Appeal in Sierra makes the point that a temporary decrease in value is not enough.  There is no clarity in the case law, however, as to what time-frame constitutes “temporary.”  In the midst of a pandemic, should we be waiting it out and dividing property once market value returns to what it was before our economy was devasted?  Although the court does not have jurisdiction to make such an order, if you are negotiating a resolution to this issue in a collaborative, settlement-oriented way, it could be an option, if both parties agree.

Covid-19 is likely to have an impact on how spouses negotiate their Separation Agreements, and when.  Deciding whether to settle now, wait it out, or leave it in the hands of the court once we are able to bring matters to court again, will be part of the discussion.

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact

Negotiating a Separation Agreement

Negotiating a Separation Agreement

One of the first decisions to be made when negotiating a separation agreement is the date of separation.  This date is important for two reasons:  first, one of the grounds parties can rely on to obtain a divorce is that they lived “separate and apart” for at least twelve months.  Second, the increase in the value of property to be divided is calculated as of the date of separation in order to then determine property division.

More and more often couples remain in the same home even after having separated while they determine future parenting arrangements and for financial reasons.  For family law purposes, it is indeed possible to be separated while living under the same roof.  It all comes down to how we define “living separate and apart.”

A host of factors is taken into account although even the most obvious, an actual physical separation, may not necessarily signify living separate and apart.  There is case law supporting a conclusion that spouses who live in separate homes do not necessarily meet the definition of “living separate and apart.”   Even the fact that both parents continue to attend family functions or other activities involving children does not necessarily mean that they are not separated, although it may be a factor.

There have been trials to determine the separation date.  The dates suggested by each spouse could be as much as several years apart.

Given the impact of a separation date on the financial outcome of the separation, and on the timeline to obtain a divorce, it ought to be agreed to early in the negotiations.

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact