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Sep 8 16

Parents’ Right to Disclosure Reduced Once the Children’s Aid Society is the Legal Guardian of the Children

by Daniel Gloade

In the case of Children’s Aid Society of Toronto v. F. D.-S., 2016 ONCJ 520 (CanLII) Madame Justice Zisman dealt with an interesting situation.  There was an outstanding court order that children be made a Crown Ward.  This means that the Children’s Aid Society, for all intents and purposes, was now the parent.  The Mother have no right of access.

As per the Statutes, the children’s situation was reviewed in a Status Review.  The matter before Madame Justice Zisman was the Mother’s motion to compel the CAS to provide a copy of the children’s therapist records.   The C.A.S. refused.

Justice Zisman affirmed the general rule that when a parent either fights the CAS’s decision to apprehend the children or fights for the child to stay in the care and control of that parent, then that parent has a broad right of disclosure from the C.A.S.  The reasoning is both fairness to the parent and that the court wants as much evidence as possible in deciding the fate of the child.

Once a judge decides that the CAS should be a child’s legal guardian, however, then the parents’ right of disclosure is narrowed.  The CAS should be less concerned with justifying its decision and more concerned with providing care to the child.

Ultimately, it is a balancing between the harm to the parties.  Justice Zisman held that

  • The children expected their comments were not to be disclosed in open court because it was a therapist and that the child custody proceeding was over;
  • Therapy would not be as effective if the children feared that their comments would be used in court;
  • The therapy notes and records were not really relevant.  The children were not focused on whether the Mother has access.

The Mother was not seriously prejudiced do to a lack of disclosure because;

  • She provided very little evidence as to what information she needed for her case that could only come from the therapy notes and
  • She did not provide evidence that she would have a good chance of succeeding in her request.

You can read the case here.

Sep 1 16

Why Don’t’ We Pay for Parking and for the Bus by Phone App?

by Daniel Gloade

For those that use Kitchener Transit, there is an Application that you can download.  It will provide bus routes and real time locations for buses.  Unfortunately, it does not allow you to pre-pay for your ride.  Instead, one must purchase a Card that one can either load up beforehand or pay a flat rate.  Why not allow individuals to pay online using their cell phones?  This is an option for passengers in the United Kingdom.  Customers can get upset by getting yet another card.  Also, customers may avoid the bus because they do not have exact change.  Both problems can be solved with this app.

Similarly, several cities in Canada allows people to pay for parking by phone.  It is already in place at Toronto, London and Ottawa.  People will be more willing to shop downtown if they don’t have to worry about having loose change for the meter, or running back to feed the meter.

These measures will increase revenue for the city and will make taxpayers happier.

Aug 29 16

Proof of Bad Faith in Family Responsibility Office Default Hearings

by Daniel Gloade

The Family Responsibility Office (F.R.O.) is a government agency that enforces child and spousal support payments.  If the Payor fails to make payments, the F.R.O can go to court and ask the court to inflict penalties on the delinquent Payor.  This is called a Default Hearing.

In the Default Hearing, a judge should not re-examine the child support orders themselves, but can create or change a repayment schedule or penalties.

Payors must show a valid reason as to why they have not paid the ordered support.  A valid reason is defined as something that was beyond the payor’s ability to either avoid or recover from and would affect his or her ability to pay support.  

In Ontario (Family Responsibility Office) v. Levy, 2016 ONCJ 474 (CanLII) (You can read the decision here) the Family Responsibility Office brought a Default Proceeding.  They requested monthly payments set at a certain and a provision that the Payor would spend 3 days in jail for every missed payment.

The child support payable was based on an order dated 2010.  The Payor did not participate in the proceedings had an income imputed to him of $60 000.00.

The Payor then brought several motions to change this Order but would fail to attend court dates for his own proceedings.   The Father also failed to pay

  1. The child support ordered,
  2. The arrears payment ordered
  3. Costs awarded
  4. An amount for security for costs that was ordered

The Payor claims that the court ordered child support was based on an imputed income that was much higher than he earned.  He was unable to pay the costs ordered and the amounts accumulated exponentially.  He states that the default provisions would, essentially, keep him in jail.

The Payor argued that:

  1. He was on social assistance most years, and earned a minimum income
  2. He had to assist his invalid mother;
  3. He lost his driver’s licence, and this impaired his ability to earn and income.

Justice Sherr had some sympathy for the Payor, but there were other factors that showed bad faith.

The Father:

  1. Had a record of not paying support unless threatened by the court, even when he had the ability to pay;
  2. Failed to produce court-ordered documents;
  3. Had incomplete and inaccurate records arising from his self-employment when the self-employed have a higher obligation to have accurate records and source documents;
  4. Did not provide materials showing that he applied for other jobs;
  5. Did not provide medical documents showing an inability to work;
  6. Continued with his own business even when it was clear that it was unprofitable;
  7. The Payor claimed that he had significant monthly expenses and that he paid $38 000 in legal fees but there was no evidence as to how he paid for it;
  8. The Payor claimed that he had loans from family and friends, but there was no evidence of it.

Apart from reducing the monthly amounts, Justice Sherr granted the order requested by the F.R.O.

This case shows the importance of showing full and candid disclosure early in the case.  Child support obligations don’t go away because you don’t want to face your financial situation.

Aug 21 16

Bee Health in Kitchener Waterloo

by Daniel Gloade

As you are aware, there is a great deal of discussion regarding possible bee extinction.  The Kitchener-Waterloo City Hall is now contemplating making the city “bee friendly”.  You can read more about this issue in the Record article located here.

More directly, there is research connecting bee health and a type of pesticide called Neonicotinoids.  Canada’s position regarding these pesticides can be found here.

Basically, most of the bee deaths from pesticide comes regarding dusting soybean and corn crops.  The Canadian government has order new methods to reduce the bee deaths, but it is too soon to determine if these measures are sufficient.

But what would Canada do if it cannot use Neonicotinoids?  There is an interesting article on the debate located here.  It is called: “Neonics: better alternatives or only option?” by Robert Arnason.  It is found in the 11 June 2015 issue of Producer Magazine.   You can read it here.

Although the solutions are not clear, we need to address this issue.  Bees are a vital part of our local ecosystem.

Aug 21 16

How to Choose the Child’s School

by Daniel Gloade

Usually, a child normally resides with one parent and spends some weekends with the other.  One of the principle reasons for this arrangement is the child’s schooling.  The child’s life can become more complex if he or she spends some weeknights with one parent and the remainder of those days with another.  How will the child bus between home and school if one parent is outside the bus route?  Would the child have problems completing homework if he or she does not consistently go to the same home in the evening?  How will the child participate in extra-curricular activities?

Often, the parties have a “week about” or “alternating days” arrangement when the child is very young.  When the child reaches school age, however, they feel that they must decide with which parent will the child reside during school nights.   

In the case of Hamid v Hamid, 2016 ONSC 5013 (CanLII), however, the parents did not want to abandon their “alternating days” schedule.  They still needed to choose the child’s school, however.

The Honourable Justice Douglas cited previous case law that stated that the focus should be on the child’s best interests and not the parents’ convenience.  The best interests include what choice will provide the best education and will also provide maximum contact with friends and family.

Justice Douglas listed the factors that other judges considered important in making this decision.

“The parties further agree that the factors outlined in the case of Askalan v. Taleb, [2012] ONSC 4746 are a useful guideline in considering this issue. These factors include:

  • Assessing any impact on the stability of the child;
  • Examining how many years the child has attended his or her current school;
  • Whether there is any prospect of one of the parties moving in the near future;
  • Where the child was born and raised;
  • Whether a move will mean new child care providers or other unsettling features;
  • Decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling;
  • Any problems with the present school.

The Honourable Justice Douglas then considered the following factors in the case before him:

  • Travel time of each parent for each school proposed
  • Ability of the child to attend extra-curricular activities
  • Ability of each parent to provide after school care
  • Permanency of each parent’s residence generally
  • Can the child stay with his or her current classmates?
  • Which arrangement is most familiar to the child?
  • Which school is closest to the status quo?
  • The quality of the respective schools

The actual decision is irrelevant, but this case is a good summary of the law in this area.

You can read the decision here.

 

Aug 5 16

Look Out for Ransomware

by Daniel Gloade

There has been a lot of news stories about ransomware.  Ransomware is a computer program that locks up some or all of your computer.  You must pay the software users in order to access your computer once again.

Malwarebytes, a company that writes computer security software, issued an international report regarding businesses attacked by ransomware.  The Record wrote a story about the Canadian aspects of this report and you can read it here.

The Canadian Anti-Fraud Centre advises Canadians to take the following measures:

Warning sign(s) – How to protect yourself

  • Never send money to “unlock” a computer.
  • Businesses should have a “emergency preparedness” cyber security plan in place.
  • Businesses should independently verify any attack with their internet service provider or a computer repair professional.
  • Never click on a pop up that claims your computer has a virus, if you cannot access anything on the computer beyond the pop-up screen your computer is infected.
  • Avoid opening email and email attachments from unknown sources, especially .zip files.
  • Ensure your anti-virus software is active and up to date and regularly schedule scans to search and remove already existing malware.
  • Keep your operating system and software up to date.
  • Make regular backups of important files.
  • Be vigilant against clicking on links within emails.

You can read the website here.

I also recommend that you type in ransomware Canada into your browser and then hit “images”.  You will see screenshots of warning messages from typical ransomware.  It is a good way to know whether you are dealing with a ransomware scammer or not.

Aug 3 16

Rare Remedies for Big Money Cases

by Daniel Gloade

The case of Foulidis v Foulidis, 2016 ONSC 4819 deals with a matrimonial dispute involving millions of dollars.  You can read the details here.

In this case, the Mother had virtually no income and cared for the remaining “child” of the relationship.  The other offspring were now adults and lived outside of the home.  She resided in the matrimonial home and had no job or transferrable job skills.

The Father claimed that he was earning about $70 000.00.  He recorded a debt of approximately $3 million to Revenue Canada but had no documents from that agency confirming this allegation.

The Mother wanted several things  First, she wanted the Court to appoint a Receiver to control and preserve the Father’s assets.    She cited section 101 of the Courts of Justice Act.  You can read it here.

She argued that she would lose the value of the matrimonial property to Revenue Canada otherwise.

The Honourable Justice C. Horkins reviewed the law regarding appointing Receiver.  Essentially it states

  1. This requested remedy should be granted rarely;
  2. there must be strong evidence that the [Requester’s] right to recovery is in serious jeopardy;
  3. when deciding to grant this remedy, consider both the conduct of, and effect on the parties;
  4. the judge must also consider the nature of the property and the rights and interests of all parties in relation;
  5. Balance the harm to the Requester in not granting the request to the harm of the Defender in granting the request;Generally the balance is in favour of the requestor if
    1. there is a strong case of fraud
    2. the Requester’s right of recovery is in serious jeopardy.
  6. the test for granting a Receiver is as follows;
    1. Make a preliminary assessment if there is a credible argument for this remedy;
    2. Would the requestor suffer irreparable harm if the Receivership is not granted?  Irreparable harm means

the nature of the harm, not the magnitude of the harm;

the harm must be clear and not speculative;

 

Justice C Horkins held that there was no real proof that the Father owed Revenue Canada so much money and declined to appoint a Receiver at this time.

Justice Horkins appointed one expert to review the Father’s financial situation and provide better evidence of the Father’s assets and debts.  He sited, as his authority, section 20.1(3) of the Family Law Rules.

You can read it here.

Since the Father had access to money he was ordered to pay the expert’s retainer but was free to claim 1/2 of the amount back at the end of the trial.

Finally, Justice Horkins ordered the Father to pay $25 000 towards the payment of the Mother’s lawyer.  He used section 24(12) of the Family Law Act.  You can read it here

The test for deciding whether such an Order is appropriate is as follows:

  1. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.
  2. An order under section [sic] 24(12) should not immunize a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate.

Certainly the proof of the necessity of interim disbursements would be critical to the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.

The claimant must demonstrate that he or she is incapable of funding the requested amounts.

The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.

Justice Horkins felt that the Mother’s case seemed to have merit.  It was a highly complex case and the Father controlled all of the money.  This partial payment of the retainer was to level the playing field.

Jul 26 16

Should “Financial Planners” Be a Regulated Profession?

by Daniel Gloade

An expert committee issued a report about Financial Planners.  In essence, the Committee felt that Financial Planners should be regulated.  They must have certain qualifications.  They must adhere to a code of conduct or be subject to discipline.  They must work for the client’s best interests only and have no conflicts of interest.  This may seem obvious, but it is currently not the case.

The usual issue is that banks often offers the services of Financial Planners.  Although there is nothing sinister in this service, the Financial Planner works for the bank and its interests.  You can read a summary of the Committee’s recommendations from the FAIR Website.  You can read it here.

Also, I didn’t know this, but there is an Ombudsman for Banking Services and Investments.  You can read the website here.

Unfortunately, there is no office in the Kitchener-Waterloo area.  The office appears to be in Toronto.  Second, the OBSI does not have the power to give financial compensation to wronged customers.  Only the bank can do this.

Jul 11 16

Judge can’t order parties to use a Parenting Coordinator

by Daniel Gloade

The case of Michelon v. Ryder, 2016 ONCJ 327 (CanLII) is interesting.  The parties signed an Agreement.  It made a list of 45 child custody and access issues that were to be resolved by a named Parenting Coordinator.

Justice Marvin Kurz was asked to sign a court Order as per the Separation Agreement.  Kurz J questioned whether he could order someone to resolve issues by arbitration as opposed to going to court.  Kurz J held that he did not have that power.

Justice Kurz reminded the parties, however, that they can both sign an agreement to arbitrate matters.  It just won’t be in the court Order.

The text of the decision is here.

I did some research.  There is a database to find a Family Mediator.  It is the Ontario Association for Family Mediation.  The website is here.

 

Jul 11 16

Don’t Fear Windows 10

by Daniel Gloade

Like many small businesses in the Kitchener-Waterloo area, I use Windows software.  Soon your Windows will be updated to Windows 10.  I am not a computer expert, but most of the online reviews of this software are favourable.

Please see the article entitled:  “Why Resist Windows 10 When Its Free”.  You can read the article here.

Windows is automatically updating your software to Windows 10.  Apparently some Window users don’t know what is happening.  They are adjusting their software because they fear the update is some form of attack.  You can read more about this here.

You want your Windows to get updates regardless of which version you use.  Don’t disable Windows’ ability to get updates because you don’t want Windows 10.

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