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Pets as Property, Not Children

Date: 06 Dec, 2016

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Few of us can dispute the fact that in many families, our pets are elevated beyond the status of simple property to that of family members. Many of us receive Christmas cards allegedly signed by the family dog. However, when marriages fall apart, the courts are the very last place to look to for any assistance resolving disputes over pets. Whom will the pets live with and any other questions such as veterinarian bills can be problematic and the courts are of little practical help.

The courts in many jurisdictions, including Ontario, have clearly held that pets are property, not children and are to be dealt with only from that perspective. A separated spouse who seeks help from the court in dealing with a pet is more likely than not to find themselves at the end of a sharply worded rebuke by the courts.

If pets are property then all the other normal rules of determining ownership come into play such as receipts, care, who paid for the pet, possession and the like. In other words, the courts are your very last and most reluctant resource if you and your former spouse cannot work out your differences on the point of what is to happen to the family pet once a marriage falls apart.

Power of Attorney – Property

Date: 16 Nov, 2016

Thumbnail-LogoThere are two types of Powers of Attorney available under the Substitute Decision Act enacted in 1992.

One is a power of attorney over property. The term “Property” can be misleading to the average lay person. “Property” does not refer to simply real estate and a home but rather anything of value that the grantor of the power of attorney may own. Also, the word “Attorney” can be misleading. The average person assumes this refers to a lawyer but that is not what Attorney means. Rather, it is the recipient of the power of attorney. The person that is being invested with power by the grantor of the power of attorney. We commonly refer to the granting of a power of attorney of property as akin to a blank cheque. You do not give away property or ownership of assets by way of power of attorney. Rather that is done by your will. What a power of attorney does do is it gives power away. It allows the recipient in most cases to make vicarious decisions on behalf of the grantor. While the attorney has an onerous fiduciary duty to the grantor, that will not do the grantor much good if the attorney is abusing the power granted to them. Or more simply put, your good friend that you trusted as your attorney may have serious legal responsibilities, but that will do you no good if they are broke.

It is also important to ensure that the attorney understands how serious their role is and how important it is especially if someone may in future look over their shoulder. Careful records and separation of assets must be kept.

It is crucial that an attorney not intermingle any of the property or assets of the grantor with their own. An attorney is entitled to receive some fee for their work but generally it is a labor motivated by responsibility. Often a familial responsibility such as taking care of your parents assets.

Most powers of attorney survive the grantor’s subsequent mental or physical incapacitation. In plain English, this means that the moment the power of attorney is signed, it begins to work. It generally does not start to work once the grantor becomes mentally incompetent.

For that reason alone, it is crucial that one pay careful attention in choosing the correct person. Not only must they be very responsible but they must be capable.

There is a way you can restrict a power of attorney to start only when you go “gaga” but you need a competent lawyer to set that up.

The risk of not doing a power of attorney is horrendous legal fees to come up with a court appointed substitute. That court appointed substitute usually is an order appointing someone as a guardian of property, such as for an incapacitated relative.

The costs are extreme, often in excess of $10,000.00 and are very laborious and time consuming.

There is the bitter irony that often, it is better to die without a will than then to become ill with no power of attorney. In no way are we advocating that one should skip doing a will but this is an exercise in explaining to all how foolish it is not to have proper powers of attorney in place.

What is the Difference between a Temporary Order, a Final Order and a Without Prejudice Order.

Date: 22 Sep, 2016

Thumbnail-LogoA temporary (aka interim order) is one made by the court at a motion.  This usually is based upon the judge reading the written evidence given by the parties through affidavits and listening to the arguments made by the parties lawyers.  These temporary orders last until they are replaced by a final order of the court or some other final resolution of the matter between the parties.

A final order almost always is a result of a trial or the consent of the parties.  At times it can arise from a legal shortcut such as a motion for summary judgment.

The main difference between a temporary and final order is that the final order is made after what is supposed to have been a careful deliberation and evidence on all of the facts which is why it usually arrives either from the final settlement or the conclusion of a trial.  A temporary order is exactly that, a temporary agreement or order made by a motions judge to deal with temporary issues until the court can make a final decision.  An example of a temporary order would be temporary custody and access to the children until there is a final settlement or decision on this point.  Another example would be the amount of child or spousal support that would be paid until the matter was finally determined by way of trial or settlement.

A without prejudice order is one in which the parties have agreed to or at times the court imposes simply a patch work temporary solution without establishing a precedent.  An example would be, the parties cannot agree on the income that each of them earn and so as not to establish a baseline or any kind of a decision on the point the court, or the parties themselves might agree that on a without prejudice basis and until further evidence can be obtained or the parties are prepared to litigate the matter that each of the parties incomes is deemed to be X and Y and from that starting point, support can be ordered.

Another example of a without prejudice temporary order might be one granting either the mother or father temporary custody of the child/children just so that there is a home base and so as to temporarily and without setting a status quo settling the issue.

New Home Warranty Act

Date: 16 Jun, 2015

Thumbnail-LogoThe following summary is for information purposes and very important to any purchasers of new homes or condominiums in Ontario.

Tarion Warranty Corp. is designated by statute under the Ontario New Home Warranties Plan Act to administer consumer protection and has the authority to administer new home warranties for purchasers of properties. It is a private and not for profit corporation which administers such Act.

When a purchaser buys a new home, the builder of this purchaser’s home is mandated to be registered with the government through this Tarion agency/corporation.  Tarion offers partial protection for deposits paid to builders and for defects that might be discovered before or after the closing.  Tarion provides a warranty that makes the builder accountable for major structural defects and disclosure in Purchase Agreements as to closing adjustments costs is mandated. However, notwithstanding such disclosure it is important to have your own lawyer review the offer, explain the various builder’s adjustments such as hydro, water meter hook up charges and new or increased development and educational levies imposed by the local municipality and usually incorporated in the offer of sale to new home purchasers and passed on as an adjustment. The role of the lawyer is to attempt to reduce or cap such adjustments even if disclosed but not all the amounts are mandated in a dollar amount to be disclosed. Our firm at Dale, Streiman Law LLP takes the responsibility to review the offer and prepare an amendment to cap such adjustments, and with our experience at times depending on the builder and the subdivision area, as the adjustments can amount to over $7,000.

Often contained in new home purchase offers are other items such as being permitted to change the design of the lot to a mirror image, i.e. with the garage reversed to the other side notwithstanding the rendering and layout provided to the purchasers. Further, if the grade does not permit and the builder department requires same, then the door from the interior of the garage may not be installed. Further there is the issue of the location of the “street furniture” on the lot, i.e. the hydro transformer box, the hydrant, cable and Bell switchboxes and importantly any catchbasin to collect the water as in a sewer located in the rear yard or even the front yard, the location of the community mail boxes near or in front of the lot being purchased.  The attending lawyer at our firm will point these issues and recommend that the purchaser inquire of these issues as to location of the “street furniture”, the location of any schools, commercial buildings, walkways, parks, churches, and flood control water and ponds that might be adjacent to the new lot being purchased. Of course these adjacent installations impact on the purchaser’s decision for buying that particular lot or to switch to another lot and the location of these installation and structures may have a detrimental effect on the future value or marketability of your new home at a later date.

We at Dale, Streiman Law take pride in assisting all our clients in these questions that arise on new home purchases. Please feel free to meet with any of the lawyers on our real estate team.

ELLIOTT DALE and SHANA DALE

Constructive Dismissal – Employment Law

Date: 28 May, 2015

The Supreme Court of Canada on March 6th, 2015, clarified the law of of wrongful dismissal in the decision of Potter v. New Brunswick Legal Aid Services Commission.

In this case the Board of Directors of the Legal Aid Commission had decided to get rid of its executive director.  While Potter was on sick leave, he was, without any reason, told not to return to work though he would continue to be paid.  After six weeks of not being asked to return, he sued for wrongful dismissal.

The question was, has he been constructively dismissed?  In other words, were the steps and actions taken by his employer, the same as being fired without cause which would give grounds to bring an action for wrongful dismissal?

The court found that he had been constructively dismissed and damages were awarded.

The court found that being paid is not the only benefit of working.  There are other benefits and rewards one receives for working and the court found that removing the benefits derived from performing work amounted to a substantial change in Potter’s employment and in turn, justified a finding of constructive dismissal.

What is the test for constructive dismissal?  (Sorry this is a little technical)

  1. Is the employer’s unilateral change a breach of an express or implied term of the employment contract and if so did the employer substantially alter this essential term of the employment contract?  One must remember that if there is an express or implied term (and most one sided employment contracts do contain this authority), that the employer may make unilateral changes OR if the employee consents, in other words simply goes along and accepts the change, the employee will be found to have agreed and therefore the change is no longer unilateral.  If it is not unilateral, in other words one sided, there is no longer a breach of a contract of employment and as such there is no constructive dismissal.  The change must be detrimental or substantial to the employee.  The court must ask at the time the breach occurred, would a reasonable person in the same situation as the employee, have felt that the essential terms of the contract were being substantially changed?  A minor change is not constructive dismissal.  It does not take a genius to recognize that every case is different and depends upon its individual facts.
  1. Another test as to whether or not constructive dismissal exists is whether the employer intended not to be bound by the contract.  This is an examination of the behaviour of the employer towards the employee.  Is there is a course of conduct pursued by the employer that shows that it had no intention to continue to be bound by an existing employment contract.   An employment contract can simply be an oral or implied one by virtue of the fact that you have been hired.  Alternatively, an employment contract can be a very specific written one.

The court lent much weight to the fact that no explanation or reasonableness was extended to Potter.  Potter was never explained why he was suspended or what indeed was the employer’s intention.  No employer is at liberty to withhold work from an employee either in bad faith or without justification.  An employer cannot suspend an employee without telling them why.  Employers have to show legitimate business reasons.  In essence, the employer must act in good faith which means being honest, reasonable and candid.  Here Potter asked why but was only met with silence.  A deadly step to be taken by an employer.

The court did add some comfort to employers.  If an employee pulls the trigger and fails in his/her claim of constructive dismissal, the employee almost always will be found to have voluntarily quit.  A claim for constructive dismissal is not a simple one and should never be attempted by a person without the benefit of advice from an experienced lawyer in this area.

Wills and Estates – Estate Administration Tax

Date: 13 Mar, 2015

Wills and Estates – Estate Administration Tax
Estates Administration Act

Probate Fees- New Regulations as of January 1st, 2015

On January 1st, 2015, the Provincial Government activated new regulations dealing with the collection of the estate administration tax, also known by its common name as “Probate Fees”.  This is roughly the equivalent of the 1.5% tax that the Provincial Government levies on all estate assets that need to be “probated”.

For the first time, the Provincial Government appears to be getting serious about ensuring that it is receiving its fair share when an estate is passed from one generation to another.  Amendments were also made to the Retail Sales Tax Act, in essence to make the filing of an Estate Administration Information Form mandatory and treating it as if it was the equivalent of a Retail Sales Tax Report.  This was done to give the Provincial Government the ability to enforce the collection of the tax. It is the basis for determining the amount that the Provincial Government feels it is entitled to.

NEW FORM

A lengthy and highly detailed form now needs to be completed by each estate trustee and it must be RECEIVED by the Minister of Revenue within 90 days of the granting of probate.

See link: http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf/GetFileAttach/9955E~1/$File/9955E.pdf

The assets subject to probate fees remains the same.  The difference is the reporting and the obligation upon the executor to ensure that he/she has taken all reasonable steps to fulfill their obligations and accurately report the amount passing under the Will so that the Government can get its slice of the pie.

The information form now requires the executor to take all reasonable steps to document the value of the contents.  Previously, it was not uncommon except in the most lavish of homes to assign no value whatsoever to either motor vehicles or household contents.  This on a practical basis is no longer the case.  In a recent lecture, organized by the Law Society of Upper Canada, Senior Auditors for the Ministry of Revenue indicated that they were going to take proportionality into account.  In other words, unless something is an extremely high value asset the Ministry will accept a relatively modest value.

As this is a new regime, our advice will change as the process evolves.  At this stage, the best advice appears to be the following:

Real Estate: The Home

  1. Unless it is an extremely expensive home, a reasonable valuation by a real estate agent is satisfactory.  This valuation must be in writing.

Household Contents

  1. Usually these have very little resale value.  It would be good practice for the executor to video tape the entire contents and save that video, should the auditors come calling. A reasonable, yet realistically modest value should be assigned to the contents.  Remember it is what you could sell these contents for, not their sentimental value or replacement cost.  However, one can no longer simply attribute zero to this value.

Personal Property and Jewelry

  1. The value of personal items should indeed be properly valued by an appropriate jeweler or appraiser.  Remember again that this is not insurance value or replacement cost, but what the market value as of the date of death was for the item.

Motor vehicles

  1. One should take a look at Red Book value or the value that is available through the Ministry of Transportation.  Clearly, these values are all within the reach of the Ministry.

Boat Valuations

  1.  These are available although at some expense through an online service.

Risks to Executor 

There are significant risks especially if there are asset with a significant value.  While the Estate Administration Act does not have the ability to impose personal liability on the estate trustee in the fashion that exists under the Income Tax Act, an executor who does not take care to protect him or herself, can be subject to significant fines and even imprisonment.

Concluding an Estate

Except in the closest of families, we recommend a final release and indemnification agreement be signed by the beneficiaries.  This should be done before the final distribution.  Now even greater care is needed in the documents preparation.  The beneficiaries should be required to indemnify the executor should any additional estate tax be found owing at a later date.

Comfort Letter

An estate trustee in administrating an estate with significant value after a Clearance Certificate is obtained from Canada Revenue Agency, can obtain a Comfort Letter from the Ministry.  However, while this provision exists in the regulation, details have not materialized and no one actually knows what this will look like.

Joint Assets to Avoid Probate

The regulations bring up again the difficult area of dealing with assets that are held jointly solely to avoid probate fees.  A classic example is transferring bank accounts or even the family home into the name of the testator (the person writing the Will) and a child on a joint account.  This must be handled correctly, otherwise all of these assets will fall back into the estate and will have to be included in the determination of the amount of estate administrative tax that will have to be paid.

Especially for an asset as large as a home, a primary and secondary Will should be prepared.

The lawyers at Dale Streiman Law L.L.P. have decades of experience in these areas and assist you in not only preparing a Will, but also in estate planning which can minimize the estate tax that can easily amount to many thousands of dollars upon the death.

Can a Parent Relocate with a Child on a Temporary Basis?

Date: 04 Feb, 2015

An interesting, recent case was brought before the Ontario Court of Justice on the issue of relocation on a temporary basis. In Boudreault v. Charles, 2014 CarswellOnt 7523 (Ont. C.J.), the mother moves to relocate to Montreal with her 3 year old child by way of an interim motion. It is not without doubt that she has a compelling case. The father has been convicted of assaulting the mother while she was holding the child. He has only had supervised access visits with the child. To add to this, he is in great default of child support and a costs order.

A diligent review of case law shows that this is certainly not the first time this issue has been brought before the courts. For example, in Plumley v. Plumley, 1999 CarswellOnt 3503 (Ont. S.C.J.) the court set out the follow principles on relocating with a child:

a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.

c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

Taking Plumley and other leading cases into consideration, Justice Sherr in Boudreault states that the court must also consider the best interest factors set out in subsection 24(2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24(3) and (4) of the Act.[1]

At paragraph 29 of his decision, Justice Sherr comes to the conclusion that the trial result would be inevitable and that it is in the child’s best interest to move with the mother to Montreal at the end of the child’s school term. Justice Sherr finds that the advantages of the mother and child moving to Montreal clearly outweigh the disadvantage of any loss of contact with the father. Further, Justice Sherr boldly asserts in paragraph 31 that the mother will likely be a happier and better-functioning parent in Montreal. This will benefit the child.

A careful reading of Justice Sherr’s decision reveals that at the forefront of mobility issues is the child’s best interest. Justice Sherr does not make the assertion that a happy parent equals a happy child, but rather implies that it is a side effect of his decision. However, not all cases are alike and although both the mother and child in this case will be better off with the relocation, conflicting jurisprudence shows that this delicate issue is one that is decided on a case by case basis.

[1]Best interests of child

(2)  The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

 

Past conduct

(3)  A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

 

Violence and abuse

(4)  In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).

 

In addition to the Act, Justice Sherr mentions the importance of considering the leading authority on mobility cases, Gordon v. Goertz,1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). The law is summarized in paragraphs 49 and 50 of that case.

This notion was heavily doubted in Berry v. Berry, 7 R.F.L. (7th) 1 (Ont. C.A.) and Bilopavlovic v. Bilopavlovic, 2008 CarswellOnt 2649 (Ont. C.A.).

CAN YOU FORCE THE PRODUCTION OF THE NOTES OF THE MARRIAGE COUNSELOR OR THERAPIST

Date: 16 Jan, 2015

The answer lies within Rule 20(5) of the Ontario Family Law Rules.  It gives the court the ability to order the production of privileged documents, even if there is no consent.  In the recent decision of Justice Henderson of the Ontario Superior Court in the case of Raso vs. Di Egidio, he weighed carefully whether or not in a custody fight such notes or records should be released.  On one hand, Justice Henderson believed that there could potentially be very important information contained within these notes, but their release must be balanced against an effort to encourage parties to attend marriage counseling and the belief that it is a confidential process.    In that case, the judge balanced one motive against the other and hanging his hat on the basis that the wife in seeking the psychologist reports had waited far too long to make such a request, he refused their production at trial.  So one can ask a judge to force their production, but it is certainly not an automatic result.  So mark another area as discretionary.

WHAT DO I DO WHEN MY EX-SPOUSE WILL NOT OBEY THE COURT ORDER THAT I HAVE BEEN ABLE TO OBTAIN

Date: 06 Jan, 2015

The courts are generally very unhappy when its orders are being ignored.  However, in the face of an intransigent spouse, it requires a persistent and a skilled hand to force a difficult party to reach a judicially imposed finish line.  The court has many tools, not all of them completely effective in motivating a reluctant target of a court order.  As an example, if specific access is being frustrated, the court as an alternate remedy can change custody.

Or the court can impose a penalty, such as a fine.

One remedy is to seek an order finding a party in breach of a court order and thus in contempt.  Family law lawyers out of a sense of eagerness, will often make such threats, but the Ontario Court of Appeal has stated that a contempt order should not be granted where there are other alternatives and a great caution should be exercised.  Justice Quigley a Superior Court judge in Brampton in the recent decision of Szyngiel vs. Rintoul set out the appropriate principles.

  1. The relevant order must be completely clear and unambiguous.
  2. The breaching party knew of the court’s order.
  3. The breaching party intentionally did or failed to do anything that was in contravention of the order.
  4. The breaching party was given proper notice to the terms of the order.
  5. The order must be extremely expressed and clear, certain and unambiguous language.

If you are alleging contempt against your spouse, the onus to meet all of the points lies with you.

The person effecting the order should know with complete precision of what he or she is required to do or not do.  Implied terms do not count.

The contempt power is used with great restraint and only in exceptional circumstances.  The contempt order must be the only reasonable means by which to send a message to the breaching party that the court orders are not be flaunted.  A contempt order should only be use for serious breaches which justify serious consequences.

The court has the power after a finding of contempt to impose many strong penalties, including fines, jail and dismissing the breaching party’s case in its entirety.  After this learned and lengthy analysis of the law of contempt as it applies in family law cases, Justice Quigley applied a relatively light sentence to simply finding the breaching party being in contempt with no further penalty because by the date of the motion, the contempt had been purged i.e. whatever was ordered, he had provided.

While it may seem that the judicial process is a potentially ineffective one with a toothless bite that is not always the case.  However what it is, is at times extremely cumbersome and I liken it to a moving an ocean liner.  It can take a huge and sustained effort, with repeated attempts to actually accomplish your stated goal.  There are clearly extensive legal fee consequences arising from that.

This is why if at all suitable, Dale Streiman Law LLP encourages the parties to look alternate means resolution, including four way settlement meeting and matters being referred onto mediation/arbitration if appropriate.

THE HORRORS OF PARENTAL ALIENATION AND THE SEVERELY LIMITED ABILITY OF THE JUDICIAL SYSTEM TO EFFECT ANY CHANGE

Date: 11 Dec, 2014

The writer believes that litigious custodial disputes or access fights between separating parents is almost always a function of at least one of the parents having their own psychological issues.  When both parents are mature, they should be able to place the children’s interests first and recognize that they both have to play important roles in the children’s lives.

One terrible example of a lack of parental maturity being visited upon the children is when one parent uses the child as a weapon against the other.  Children can be very susceptible to being molded by a wounded parent.  They can identify with one parent or another for many reasons or children can display a sense of moral outrage in the face of a parent who has left the marriage for another person.

Parental alienation can develop when one parent either overtly or covertly convinces children that the other parent is bad and spending any time with them is to be avoided.  A loving parent can quickly find themselves on the outside of what was a strong parental bond.  It is destructive when a child takes a strong position that they do not want to see the other parent.  Often the offending parent will protest that they never interfered and indeed are attempting to encourage a relationship between child and estranged parent.  In the face of such a position (often being taken by a young teenager), there can be serious difficulties in attempting to have the court impose a solution to this most insidious of child and parent problems.   We are not talking about a parent who has been cruel or has ill-treated a child, but rather a parent who is blameless in their capacity as parent.  They may be guilty of no other sin than not being the primary custodial parent.  Good luck to the parent who has decided to leave the marriage even with good reason to live with another person.

There are a limited number of therapists who specialize in remedying parental alienation.  Dale Streiman Law LLP has been successful in the face of such parental alienation in getting the court to exercise the ultimate remedy, which is to reverse custody and to cut off any contact between the offending parent and the alienated child.  Such efforts require great skill, expertise, martialing of competent outside experts and unfortunately significant financial and emotional effort by the wronged parent.

The courts are very attuned to the importance of an ongoing relationship between both parents and child and that it is detrimental to the child’s healthy upbringing should one parent be frozen out.

One must tread very carefully when your marriage is coming to an end and more often than not, the strong advice that the author gives to his clients is to put any other adult relationship on hold until the dust has settled and a significant time has elapsed for all concerned to become adjusted to the new reality.  The law in no way discourages or on its face takes into account fidelity or its absence.  However, we all live in a real world filled with emotions and motivations that are not always in everyone’s best interests either financially or emotionally.

It is sage advice that before any steps are taken, to consult with one of the experienced family lawyers at Dale Streiman Law LLP before taking that first step.