by kathyras@rogers.com | Jul 15, 2015 | Family Law
Facebook divorce” refers to the increasing number of marital breakdowns that have occurred as a result of information found or discovered on social networking sites like Facebook.
In recent years, Canadian Courts have allowed postings on social media sites, predominantly Facebook, to be used as evidence in family law matters. Social media sites are often one of the first sources the opposing party will look to in an effort to find incriminating evidence. Anything you post on Facebook may be used against you in your family law matter.
Social media stalking skills have become invaluable to the legal world for divorce cases in particular. Online photo albums, profile pages, news feed comments, status updates and tweets have become a great source for evidence and leads. Even if content on Facebook is deleted, it can later be retrieved by forensic experts and potentially used in court as evidence in divorce proceedings.
Facebook posts are used often as evidence in custody applications and applications to vary child and spousal support. In custody applications, Facbook evidence is used to prove that one of the parents does not act in the best interest of the child or is unsuited to care for the child. Posts that refer to or pictures of high-end purchases can be used to demonstrate the ability to pay support.
The most common way to gather information on Facebook is from the couple’s mutual online friends who still have access to the spouse’s profile and posts. Many times the spouse will “de-friend” a partner but forget about their shared friends, who can access information on their profile. Another way of uncovering useful information is from searching the profiles and posts of the suspected “other man” or “other woman”.
Evidence that may be found on social networking sites, which may potentially be used against you in a “Facebook divorce” situation include;
- A friend “tags” a compromising photo of you drinking at a party or vacationing when you claim you have no time to see your children or dispute allegations of infidelity.
- Posts about your location or activities that conflict with business trips or child visitation matters.
- Posts that suggests infidelity or deception, such as a Facebook status change to “single, but looking”.
Facebook is sited as the cause for divorce in an increasing number of divorce cases because Facebook is creating online (and offline) affairs. Facebook makes it easy for old love interests to reconnect and foster relationships that challenge the foundation of the marriage and lead to divorce.
Tips for Facebook Users Facing a Divorce
- Be careful what you post on Facebook.
- Know that what you say or post may be used against you in court, and divorce lawyers use Facebook as a matter of fact when gathering evidence.
- You do not own the content on Facebook. Facebook has the right to do certain things with your content even without your knowledge.
- Ask friends and family members to refrain from posting potentially damaging information about you on their Facebook page.
- Familiarize yourself with privacy settings to ensure there is no way personal information can be accessed.
Lawyers advise users of Facebook and other social media who are headed toward a divorce or custody battle to edit their profiles, be cautious about updating statuses and double check to see who is really a “friend.”
by kathyras@rogers.com | Apr 28, 2015 | Employment Law
If you have been fired or laid off with no notice, or no pay, your employer may be breaking the law.
Find out about your rights under the Ontario Employment Standards Act (ESA).
Not all jobs are covered by the ESA, and in some cases only parts of the ESA apply.
Some employers claim that their workers are self-employed or independent contractors and the ESA does not apply to them. If this is your situation, it is a good idea to get legal advice. Even if you signed something that says you are an “independent contractor” or in business for yourself, the rights in the ESA might still apply to you.
Some industries are regulated by the federal government, including banks, airlines, trucking, and broadcasting. Workers in these industries are covered by the Canada Labour Code.
Your employer does not have to tell you why you are being fired or laid off.
In most cases, if you are fired or laid off for more than 13 weeks, your employer must give written notice. If you are fired without proper notice, your employer must give you termination pay – your normal wages for the weeks you should have been given notice. The amount of notice or termination pay you get depends on how long you have worked for your employer. The ESA sets out minimum notice periods ranging from 1 week for people who have worked at least 3 months, to 8 weeks for people who have worked for 8 years or more. If an employer fires 50 or more workers within a 4-week period, the minimum notice periods might be different and you should seek legal advice.
A notice ordered by the Court: A court can decide that more notice was required in a particular case because the court is not limited to the minimum notice periods in the ESA. The amount of notice a court will order depends on all the circumstances, such as the type of job, the availability of similar employment, and the age of the worker – not just length of employment. A court can also order an employer to pay you for damages such as discrimination, harassment.
You can be laid off without notice if you are laid off temporarily. In most cases, the law says you are laid off temporarily if you are laid off for 13 weeks or less. The rules about temporary lay-off are complicated. If you are laid off, get legal advice about whether your lay-off is temporary or permanent.
In some cases, being forced out of a job is the same as being fired. For example, if you leave because your employer refuses to pay you, or because your employer is discriminating against you, you may have the same rights as if you were fired. You should get legal help right away.
In some situations you can be fired or laid off without notice; if you have not worked continuously for at least 3 months, or if you are fired because of your own misconduct However, what your employer says is misconduct might not be misconduct under the law so you should seek legal advice.
If you are protected by a union, check your collective agreement to find out about your rights at work, or talk to your shop steward. You will have to use the grievance procedure in the collective agreement to enforce your rights.
Severance pay is another payment that some people get when they lose their jobs under specific circumstances. To qualify you must have worked at least 5 years for your employer and your employer pays out wages of at least $2.5 million a year in Ontario, or at least 50 people will be losing their jobs within a 6-month period because the business is being cut back. Under ESA severance pay equals one week’s pay for each year of employment, up to a maximum of 26 weeks.one week’s pay for each year of employment, up to a maximum of 26 weeks.
Your employer must pay your wages and vacation pay and any money owing to you as a result of your termination no later than 7 days after your employment ends, or your next regular pay day if it comes more than 7 days after your employment ends. Severance pay can be paid in instalments up to 3 years if you agree in writing or if the Director of Employment Standards approves. In this case if your employer misses a scheduled payment, the balance of the severance pay becomes due immediately.
Your employer must prepare a Record of Employment (ROE) and give it to you within 6 days after your last day of work. Or your employer can send it to the government electronically within 16 days after your last day of work.
f you are unemployed and looking for work, you may be able to get Employment Insurance(EI) benefits. If you do not qualify for EI or you are waiting for EI, you might be able to get social assistance benefits from Ontario Works (OW). If you quit or got fired, you might still qualify for benefits depending on the circumstances.
In most cases, you cannot get your job back if you are fired. But, if you think you were fired because you tried to exercise your legal rights under the ESA, you should get legal help. The Ministry of Labour can order your employer to compensate you and give you back your job. Examples of exercising your legal rights under the ESA are:
- taking the pregnancy or parental leave you are entitled to, and returning to your job at the end of your leave,
- asking about your rights or asking your employer to obey the law,
- refusing to sign an agreement affecting your rights (for example, an agreement about how you will be compensated for overtime),
- making a claim against your employer, or
- giving information to an Employment Standards Officer who is investigating your employer.
You should also get legal help if you think you were fired:
- because of your race, sex, age, disability, or other reasons that violate your human rights,
- because you raised a health or safety issue in the workplace, or
- because you raised a concern about your employer not obeying environmental protection laws.
You may be able to enforce your rights as a worker by making a claim against your employer. The Ministry of Labour can order your employer to pay you money that you are owed.
In some cases, you may be able to bring a court action against your employer. If you do, you cannot file a claim for the same violation of your rights with the Ministry of Labour.
In general, a claim for unpaid wages must be filed with the Ministry of Labour within 6 months of the date the wages were owing. The claim can include unpaid wages for the last 12 months, as long as it is filed within 6 months of one of the dates when unpaid wages were due. A claim for vacation pay can be filed up to 12 months after it became due.
In certain cases, you have up to 2 years to file if your claim does not involve any unpaid wages. For example, you have up to 2 years to file a claim against your employer for penalizing you, or threatening to penalize you, because you exercised your legal rights.
If your employer has gone bankrupt, you may be able to get wages, vacation pay, severance pay, and termination pay owing to you by applying to the federal Wage Earner Protection Program (WEPP).
by kathyras@rogers.com | Apr 20, 2015 | Family Law
If your support agreement includes a specific date for when child support will end – such as when the child reaches the age of majority or for as long as the child is going to school full-time – the answer to that question is straight forward: you must continue to pay child support until the date specified in your order or agreement.
If your maintenance order or agreement does not include a specific end date, however, the answer is more complicated.
You can assume that you must pay child support at least until the child reaches the age of majority, but you may have to continue paying child support for some time longer. How much longer depends on your child’s particular living situation and circumstances.
Under the Family Law Act in Ontario, child support is limited to someone under the age of 18 or over the age of 18 and in a full time program of education. Child support must be paid as long as the child remains dependent. A dependent child is any child under the age of 18 unless:
- the child has married, or
- the child is at least 16 years old and has “voluntarily withdrawn from parental control”.
A child who is 18 or older may also be considered dependent if they cannot support themselves because:
- they have a disability or illness, or
- they are going to school full-time. (This usually continues until the child turns 22 years old or gets one post-secondary degree or diploma, but a judge may order support to continue even longer.)
When the judge decides how much support should be paid for a child who is 18 or older, they take into account any earnings or income the child receives from other sources.
Child support continues even if the parent receiving it gets married or starts to live with someone else.
by kathyras@rogers.com | Apr 17, 2015 | Employment Law
Moore v. Getahun, 2015 ONCA 55 – Reviewing Expert Reports
When this case was decided at trial, litigators all over Ontario were at a loss. The long-standing practice of assisting expert witnesses in framing their reports during the drafting process was held to be no longer acceptable. Fortunately, the Court of Appeal set things right and litigators across the province breathed a collective sigh of relief.
In the reasons for the decision, the Court of Appeal stated, “Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case… Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible.”
Imagine proceeding to trial, needing an expert witness’ opinion, but your lawyer is unable to provide guidance on how the witness’ expert report should be presented. Luckily, the Court of Appeal has made certain that this is not a concern for litigants.
Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 – Right to Strike
Preventing essential services from taking strike action is a hot-button topic. At the end of January, the Supreme Court of Canada dealt with the issue of the constitutionality of a collective bargaining unit’s right to strike.
In December 2007, the Government of Saskatchewan enacted legislation to limit the ability of public sector employees in essential services from participating in strike action. However, section 2(d) of the Canadian Charter of Rights and Freedoms provides for the fundamental freedom of association. The Supreme Court of Canada found that a prohibition on designated employees participating in strike action was a substantial interference with a meaningful process of collective bargaining and therefore a violation of the freedom of association.
The Supreme Court of Canada also concluded that this violation of section 2(d) was not a reasonable limit allowable under section 1 of the Canadian Charter of Rights and Freedoms. Although the maintenance of essential public services is a pressing and substantial obligation, the legislation went beyond what is reasonably required to ensure the uninterrupted delivery of essential services and failed to provide a meaningful alternative mechanism for resolving bargaining impasses, like arbitration.
Union members should not take this case to mean that the right to strike is absolute. Rather, the right to strike of employees in essential services may be restricted, provided that the limit is reasonable and allows for other ways to resolve deadlocks in negotiating collective agreements.
Arnone v. Best Theratronics Ltd., 2015 ONCA 63 – Bridging Until Retirement
I wrote about the trial decision in October 2014. In this case, the plaintiff, Mr. Arnone, was 53 years old with 31 years of service when his employment as a manager ended. At that time, he was 16.8 months away from retiring with an unreduced pension. The trial judge emphasized this in assessing the appropriate notice period to be 16.8 months.
In his reasons, the trial judge stated, “Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement.” From this, it appeared as if the court was stating that the assessment of a notice period could include factors outside of those cited in Bardal v. Globe & Mail Ltd., namely “the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”
I was somewhat surprised by this decision. As I wrote last year, it seemed that “This decision underscores that there is no complete set of factors that go into an assessment of reasonable notice. An impending retirement may be just as important as the employee’s age, duration of service or position.”
Thankfully, the Court of Appeal clarified that “The Bardal analysis remains the approach courts must apply to determine what constitutes reasonable notice of termination, an approach which has not included a consideration of the time between the date of dismissal and the point at which the employee would be eligible for a full pension.”
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.
by kathyras@rogers.com | Apr 14, 2015 | Employment Law
The following is a summary of some of the highlights from this decision:
- At paragraph 33 of the decision, the Supreme Court of Canada concluded that it was time to take two incremental steps in order to make the common law less unsettled and piecemeal, more coherent and more just:
- The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs the various rules in which the common law, in various situations and types of relationships, recognizes obligations of good faith contractual performance.
- The second step is to recognize, as a further manifestation of this organizing principle of good faith, that there is a common law duty of honesty which applies to all contracts to act honestly in the performance of contractual obligations.
- According to Mr. Justice Cromwell, writing for the majority, these two steps “will put in place a duty that is just, that accords with the reasonable expectations of commercial parties and that is sufficiently precise that it will enhance rather than detract from commercial certainty.”
- The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner.
- At paragraph 60, Mr. Justice Cromwell states, “Commercial parties reasonably expect a basic level of honesty and good faith in contractual dealings. While they remain at arm’s length and are not subject to the duties of a fiduciary, a basic level of honest conduct is necessary to the proper functioning of commerce. The growth of longer term, relational contracts that depend on an element of trust and cooperation clearly call for a basic element of honesty in performance, but even in transactional exchanges, misleading or deceitful conduct will fly in the face of the expectations of the parties.”
- Since the duty of honesty in contractual performance is a general doctrine of contract law that applies to all contracts, parties are not free to exclude it.
One of the questions raised by this decision is, “How does this affect employment law?” The simple answer is that it does not. As noted by Mr. Justice Cromwell at paragraph 54, the above-noted principles are entirely consistent with the Supreme Court of Canada’s earlier decisions in Honda Canada Inc. v. Keays, 2008 SCC 39 and Wallace v. United Grain Growers, 1997 CanLII 332 that all employment contracts have an implied term of good faith in the manner of dismissal. This decision merely serves to reinforce what we already knew about the employer’s duty of good faith and fair dealing – which is one of the things that the Supreme Court of Canada was looking to achieve with this decision.
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.
by kathyras@rogers.com | Feb 18, 2015 | Family Law
Separation or divorce is the result of problems between parents and not the fault of the child. But it does affect children and they may have questions about the law of separation and divorce. It is often difficult to answer questions in terms that children will understand. The Ministry of the Attorney General published a well rounded resource that explains legal terms relating to all aspects of separation and divorce and child matters in an easy to understand format.
The guide, “A Child’s Legal Guide to Separation and Divorce” contains sections covering;
- Separation and Divorce
- Custody
- Access
- Parental Disagreements
- Changes in Custody and Access
- Parents’ New Partners
- Money Issues
- Getting Help
- Dictionary of Terms
Also included is a list of the books you might want to read about how most children feel when their parents separate or divorce.
Published by the Ministry of the Attorney General Source – Family Law in Ontario
by kathyras@rogers.com | Apr 24, 2015 | Family Law
If you need to get or change a child support order under the Child Support Guidelines, the court will require income information.
Child Support Guidelines are determined by a support table based on the support paying parent’s annual income and number of children entitled to support.
Departing from the support table amount is allowed in certain circumstances, shared custody costs, or in some cases of undue hardship.
Documents must be provided by the parent receiving support, only in cases where the amount of child support requested is different from the amount on the support table or in addition to the table amount.
If the request for the amount of child support is the same as the amount on the applicable Child Support Guidelines support table, without variation or any claim for contribution to special or extra-ordinary expenses, then only the parent paying child support is required to supply this information.
- A copy of your personal income tax returns filed with the Canada Revenue Agency for each of the three most recent taxation years together with all material that was filed with the returns.
- A copy of every notice of assessment and re-assessment that you have received from the Canada Revenue Agency for the three most recent taxation years.
- (For those who are an employee) The most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not available, a letter from your employer setting out that information, including your rate of annual salary or remuneration.
- (For those who are self-employed) The following documents for the three most recent taxation years:
- the financial statements of your business or professional practice, other than a partnership; and
- a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom you do not deal at arm’s length.
- (For those who are partners in a partnership) Confirmation of your income and draw from, and capital in, the partnership for its three most recent taxation years.
- (For those who control a corporation) The following documents for its three most recent taxation years:
- the financial statements of the corporation and its subsidiaries; and
- a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length.
- (For those who are a beneficiary under a trust) A copy of the trust settlement agreement and copies of the trust’s three most recent financial statements.
- (For those who receive income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source) The most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information.
Source: Ontario Ministry of the Attorney General
by kathyras@rogers.com | Nov 28, 2014 | Employment Law
“I can’t wait for the day when I reach the Magic Number!” This thought often runs through the minds of employees with 20 or more years of service, and fortunate enough to be vested in a pension. With each passing year, these employees give more and more thought to the sum of their age plus years of service – that Magic Number which many pension plans require for participating employees to retire and begin receiving benefits.
For example, the terms of a pension plan may require a Magic Number of 90 in order to retire with an unreduced pension. A 63 year old employee with 27 years of service meets that requirement. However, a 62 year old employee with the same years of service does not. While the former employee can look forward to retirement, the latter employee may be in a precarious position until his next birthday or his next completed year of service. Until that point in time, the latter employee has to worry about the possibility of termination and the potential loss of that unreduced pension.
The recent decision of the Ontario Superior Court of Justice in Arnone v. Best Theratronics Limited, 2014 ONSC 4216 highlights this concern.
Facts of the Case
The plaintiff, Mr. Arnone, was a 53 year old sales and customer support manager with 31 years of service. At the date of his dismissal, he was 16.8 months away from being able to retire with an unreduced pension.
In his Claim, Mr. Arnone sought damages based on a notice period of 24 months. He also sought damages of $65,000 which represented the actuarial calculation of the amount needed to compensate for the loss of the unreduced pension.
Although Justice James disagreed that Mr. Arnone was entitled to a notice period of 24 months, the judge noted that “the fact that the plaintiff was less than two years away from being entitled to an unreduced pension should not be ignored in the factual matrix surrounding his termination. Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement.” In other words, Mr. Arnone’s impending retirement was a factor to consider in assessing the appropriate notice period.
Justice James concluded that, absent the fact that Mr. Arnone’s retirement was on the horizon, the appropriate notice period was 22 months. Nevertheless, the judge limited damages for pay in lieu of notice to the equivalent of the 16.8 months Mr. Arnone would have needed to retire with an unreduced pension. To account for the fact that Mr. Arnone would no longer receive pension benefits, Justice James also awarded damages of $65,000 to compensate for that loss.
Interestingly, Justice James did not deduct the income earned by Mr. Arnone after dismissal. In support of this, the judge held, “An arrangement to bridge an employee to the point he or she would receive an unreduced pension in circumstances where this period of time is less than the appropriate common law notice period would reasonably include a concession on the part of the employer not to require mitigation efforts.”
Practical Considerations
The take-aways from this case include the following:
- A pension is often an employee’s most significant asset. In cases where the termination of employment is without cause and retirement with an unreduced pension is on the horizon, it is important for the employer to consider the interplay between the range of reasonable notice the employee’s Magic Number.
- This decision underscores that fact that there is no complete set of factors that go into an assessment of reasonable notice. An impending retirement may be just as important as the employee’s age, duration of service or position.
- Where the loss of pension benefits is claimed, an actuarial calculation based on correct assumptions is essential.
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.
by kathyras@rogers.com | Oct 7, 2014 | Family Law
Creating a Parenting Plan
A parenting plan outlines more information and flexibility than traditional custody agreements because they are negotiated and discussed between the parents and address all aspects of child custody. Parents can incorporate as much or as little information as needed and agree to change the plan as your situation requires. A parenting plan outlines the parenting arrangements for a child including a schedule of the times each parent will spend with the child and information about who will make major decisions about education, medical care and more.
The parenting plan needs to be practical, according to each parent’s situation and in your child’s best interests. It’s important to set out ground rules about what information you will share with each other about the children and to decide how you will discuss parenting issues that come up from time to time. This includes information about education and school work, health and dental care, counselling, and who can attend school events, parent-teacher meetings and extra-curricular activities.
What to Consider When Making a Parenting Plan
- Living arrangements and parenting schedules
- Vacation, holidays and special days
- Health care
- Education
- Extra-curricular activities
- Religion
- Culture
- Grandparents and extended family
- Travel
- Communication between parents
- Making changes to parenting plan
- Solving Problems
- Child support
Source for detailed discussion points on each topic: Department of Justice
Resources
Legislation
by kathyras@rogers.com | Oct 3, 2014 | Family Law
There is an end in sight when it comes to daycare expenses. But parents don’t always agree on the age at which daycare is no longer necessary. Daycares are usually licensed to take children up to and including the year they turn 12 years old. Some parents are comfortable leaving a child alone at home as early as age 10; some prefer to have them in care until age 12. Perhaps a parent feels that it is not necessary to pay for before and after school daycare for an 11 year old, if the child is alone for only a half hour. Maybe it makes a difference if the child would be left alone before, or after, school.
Childcare then becomes not only a financial issue, but a parenting decision. If possible, include a provision in your separation agreement about when you expect payments for daycare to cease. Knowing how long each of you is prepared to contribute to childcare impacts both the child and the parent and should be part of any settlement discussions.
As in most custody and access cases, the facts are specific to your situation and decisions are best made by you, the people who know your children best. Whenever possible, try to prevent future arguments by planning ahead and negotiating child support issues, including when the childcare obligation ends, well in advance. Separation agreements should look to the future and deal with foreseeable situations comprehensively.
Written by Simonetta A. Lanzi. Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces.
Contact Simonetta A. Lanzi
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by kathyras@rogers.com | Sep 26, 2014 | Family Law
Daycare costs change substantially over time, particularly in the early childhood years. Depending on how young your child is, daycare will be for the full day and for the full year; once the child starts kindergarten, which is now full day in our jurisdiction, the cost will decrease to before and/or after school only. Some daycares allow part-time arrangements, but most require full-time enrollment even if the child does not attend every day. If you are sharing custody a week at a time, and only one parent requires daycare, special arrangements would have to be made if possible.
For the summer, daycare attendance will likely increase to full day again, depending on the parents’ work schedules. Even if you have vacation time and plan to be home with the children, the daycare may require you to pay either a portion or the full amount of the daycare cost for the summer to keep the spot. If you choose to put the child in camps, instead of daycare, this expense would likely be considered a childcare expense to be shared.
If, however, you choose to put your child in a camp during your week or two of extended access, rather than staying home with him or her, the cost of camp would likely be only your responsibility. If you either share the summer or each have a dedicated week or two of ‘vacation’ access, the presumption is that you will spend it with your child and have no need for daycare. It may be your choice to have the child attend camp during the day in any event — don’t assume that the other parent will share the expense in that case. Talk about it and try to agree ahead of time on how you plan to handle holiday childcare costs so that you both have a full understanding of the child support obligations.
Written by Simonetta A. Lanzi. Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces.
Contact Simonetta A. Lanzi
Related Links:
by kathyras@rogers.com | Sep 16, 2014 | Employment Law
The Ontario Court of Appeal’s decision inBoucher v. Wal-Mart Canada Corp., 2014 ONCA 419, is an excellent example of the consequences that can follow from failing to handle claims of workplace harassment and abuse carefully.
Facts of the Case
Meredith Boucher started working for Wal-Mart in 1999. After 9 years, she rose to the position of Assistant Manager at a store location in Windsor. In May 2009, her working relationship with her supervisor and Store Manager, Jason Pinnock, deteriorated after she refused to falsify a temperature log. According to the decision, thereafter Mr. Pinnock continuously humiliated and demeaned Ms. Boucher, often in front of other employees and using profane language.
Ms. Boucher eventually filed a complaint about Mr. Pinnock’s conduct under Wal-Mart’s Prevention of Violence in the Workplace Policy. However, in November 2009, senior management concluded that Ms. Boucher’s complaints were unsubstantiated and informed her that she would held accountable for making the allegations.
As stated in the decision, shortly thereafter, Mr. Pinnock once again humiliated Ms. Boucher in front of other employees. This time, he grabbed Ms. Boucher by the elbow and told her to prove to him that she could count to ten by counting out loud ten pallets of products that had yet to be unloaded. This caused Ms. Boucher to resign and a constructive dismissal action followed two weeks later.
Trial Decision
At trial, the jury concluded that Ms. Boucher was constructively dismissed and awarded her damages for pay in lieu of notice equivalent to 20 weeks of salary, aggravated damages of $200,000.00 and punitive damages of $1,000,000.00 against Wal-Mart. The jury also awarded her damages for mental distress of $100,000.00 and punitive damages of $150,000.00 against Mr. Pinnock.
Both Wal-Mart and Mr. Pinnock appealed on the basis of liability and the quantum of damages for mental distress, aggravated damages and punitive damages. Ms. Boucher cross-appealed the dismissal of her claim for future loss of income.
Appeal Decision
Mental Distress
In order to succeed on a claim for intentional infliction of mental distress, the employee must show:
- the defendant’s conduct was flagrant and outrageous;
- the defendant’s conduct was calculated to produce harm to the employee; and
- the defendant’s conduct caused the employee to suffer a visible and provable illness.
Although the Court of Appeal found the award of $100,000.00 very high, it was not so plainly unreasonable that it should be set aside. The award reflected the fact that the jury, representing the collective conscience of the community, was deeply offended by Mr. Pinnock’s misconduct.
Aggravated Damages
Aggravated damages compensate an employee for additional harm suffered as a result of the bad faith or unfair way in which the employment agreement was terminated. Wal-Mart argued that an award of aggravated damages in addition to damages for mental distress amounted to double recovery for the same wrong. The Court of Appeal rejected this argument on the basis that the unfair way Wal-Mart handled Mr. Pinnock’s misconduct and Ms. Boucher’s complaint constituted a separate wrong from the actions of Mr. Pinnock.
Wal-Mart also argued that the award of $200,000.00 was excessive. Nevertheless, while the quantum of the award was unprecedented in Canadian employment law, the Court of Appeal concluded that it was not so inordinately high that it was plainly unreasonable and upheld the jury’s award.
Punitive Damages
Unlike damages for mental distress and aggravated damages, punitive damages are not compensatory. They are intended to act as the court’s denunciation where a defendant’s conduct has been malicious, oppressive and high-handed. The employee must also show that the award is rationally required to meet the objectives of retribution, deterrence and denunciation.
The Court of Appeal, at paragraph 61, had no difficulty in concluding that Mr. Pinnock’s conduct amounted to “a marked departure from the ordinary standards of decent human behavior.” Yet, having regard to the fact that the damages for mental distress already carried a strong punitive component, the Court of Appeal concluded that an additional award of $150,000.00 was not rationally required to achieve the purpose of punitive damages. The amount, as awarded against Mr. Pinnock, was reduced to $10,000.00.
In cases of breach of contract, such as an employment agreement, an award of punitive damages also requires an actionable wrong independent of the underlying breach of contract claim. Vicarious liability for the actions of another employee is not enough. The actionable wrong must be committed by the employer and requires more than just negligent conduct. In this case, the Court of Appeal concluded that Wal-Mart breached its duty of good faith and fair dealing towards Ms. Boucher, a separate actionable wrong that justified an award of punitive damages against Wal-Mart.
However, the Court of Appeal also noted that Wal-Mart was liable for $200,000.00 in aggravated damages, damages for constructive dismissal, $140,000.00 in trial costs, as well as $100,000.00 in mental distress damages against Mr. Pinnock for which Wal-Mart was vicariously liable. As such, a further award of $1,000,000.00 in punitive damages was not rationally required. The Court of Appeal reduced this head of damages to $100,000.00.
Future Loss of Income
Ms. Boucher argued that the trial judge erred in failing to award her damages for future loss of income in the amount of $726,601.00. The Court of Appeal upheld the trial judge’s decision.
According to paragraph 103 of the reasons for the decision, “A claim for future loss of income can arise in an employment context where a plaintiff has not recovered from the effects of the wrongdoer’s action and the plaintiff has thus suffered a loss of any earning capacity because of the wrongdoer’s tortious conduct.” In this case, Ms. Boucher recovered from her mental distress within two months of her resignation. Thus, she was capable of earning an income, but simply could not secure comparable employment.
In essence, Ms. Boucher did not suffer a future loss of income, but a past loss of income. The concept of reasonable notice is intended to assist the employee in securing comparable employment. It is the writer’s opinion that if the employee is incapable of searching for new employment, due to the employer’s tortious conduct, the notice period should not start. Until the employee has recovered from the employer’s wrong and the notice period can begin, the employee has a claim for the loss of income that would have been earned but for the termination of employment.
Practical Considerations
Some of the points to take away from this case are as follows:
- This case reiterates that damages for mental distress are indeed a separate head of damages from aggravated damages which, in turn, are another separate head of damages from punitive damages. Although the distinction may be seen as subtle, they are in fact discrete.
- Consequently, employers need to take claims of harassment and abuse in the workplace seriously and handle the investigation of such claims carefully. Investigations should be handled by someone with the requisite training and skill set. It is not enough to simply direct the matter to the HR manager or in-house counsel if he or she does not have any background in investigations.
- Since the Supreme Court of Canada’s decision in Keays v. Honda Canada Inc., personal injury litigation and employment litigation have become inextricably linked. It is important to have employment counsel with knowledge and experience in both areas. Medico-legal reports and subrogated OHIP claims are matters that employment lawyers have not always had to deal with.
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.
A number of interesting cases have been handed down by the Court of Appeal and the Supreme Court of Canada in the last few months. The following is a summary of these cases to bring you up to speed.
