Legal blog by WARDS LAWYERS PC.

Featuring "Hard Labour" by Jason Ward


IF A CHILD IS ABDUCTED OR NOT RETURNED BY THE OTHER PARENT FROM A U.S. (FOREIGN) VACATION/TRIP - THE HAGUE CONVENTION

If a child from Canada is abducted to a foreign country, or is not returned from vacation in or a trip to a foreign country, the left-behind parent in Canada faces a challenging process to have the child returned (but there is a legal process available).

Generally, the Hague Convention on Civil Aspects of International Child Abduction (“Hague Convention”) applies (as of this time).

Canada is a signatory of the Hague Convention, along with the U.S. and about 86 other countries.

The Hague Convention is an international treaty. Co-operating countries have agreed to work together to return children who are wrongfully removed from a signatory country.

The goals of the Hague Convention are: (1) to secure the immediate return of a child wrongfully removed or wrongfully retained in any Contracting State; and (2) to ensure that rights of custody and access under the law of a signatory country are effectively respected in other signatory countries.   

If, for example, a child is removed from Canada unlawfully and taken to the U.S., the parent in Canada would contact the federal government and police (the “Central Authority”), following which an application would be sent to the U.S. State Department for the return of the child. These government officials are supposed to co-operate to locate the child, have the case evaluated and have a lawyer appointed in the U.S. to petition the Court to order the child to be returned.

Generally, the test for a return order under the Hague Convention is: (1) prior to removal or wrongful retention, the child was habitually resident in a foreign country; (2) the removal or retention was in breach of custody rights under the foreign country’s law; and (3) the petitioner actually was exercising custody rights at the time of the removal or wrongful retention.

If this prima facie case is met, the child will generally be ordered returned to Canada, unless the removing parent can establish one of these positions/defences: (1) the child has become well-settled in the new surroundings; (2) the petitioner consented or acquiesced in the removal or retention; (3) there is grave risk of danger to the child in the home country; (4) the child is a mature child who objects to removal; and/or (5) the returning the child would violate public policy.  

Even if one of these tests may be established, however, the U.S. Court still could order the return of the child if the Court finds that doing so would better satisfy the goals and objectives of the Hague Convention. 

Therefore, if there is a real and reasonable risk that a child may be abducted, or not be returned to Canada from a foreign vacation, caution should be exercised.

In addition, travel consent forms are helpful, particularly to rebut any argument by the removing parent in making these defences to try to keep the child in the foreign country.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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TEEN DRIVER? BE AWARE - AND BEWARE

Teen drivers, and their parents and guardians, need to be aware of the legal obligations and consequences that come with being a teen behind the wheel.

The Risk Statistics

While young people (ages 16 to 24) only make up 13% of licensed drivers, they account for approximately one quarter of all road-related injuries and fatalities. Teenagers are known to demonstrate increased risk taking behaviour, including distracted, impaired and aggressive driving and failure to wear seatbelts.  Statistics to consider:

-every year, 2,000 people die in Canada in motor vehicle collisions

-forty per cent of speeding drivers in fatal crashes are between 16 and 24 years old

-a texting driver is 23 times more likely to crash than a non-texting driver

-human error accounts for 93% of all crashes

 

Texting and driving is also a growing problem.  Almost all young adults feel that texting and driving is very dangerous, but over half still admit to doing it anyway (click here for more on distracted driving).

 

How to Protect Teens - and Parents/Guardians?  Know the Rules

 

Parents, guardians and teens should be informed of the various laws governing young drivers, including the Highway Traffic Act, the graduated licensing rules and the Criminal Code of Canada.

 

The Regulation called Drivers’ Licences sets out many of the rules regarding graduated licences.  For example, in Ontario, there is a “zero alcohol” condition for all drivers under 22 years old. Drivers with G1 and G2 graduated licences also face restrictions on where they drive, with whom and when.

 

Novice drivers face “escalating” penalties for violations of the law and regulations (including if convicted of breaking graduated licensing rules). For a first offence, a driver’s licence is suspended for 30 days. For a second offence, the suspension is for 90 days. After a third offence, a driver will lose his or her novice licence and will need to re-apply and start all over, taking all graduated licensing tests and paying all fees (and losing any time discount earned, time credited and fees paid).

 

Vicarious Liability - Owners Beware

 

Potentially serious injuries are not the only consequences of accidents involving teen drivers.  If a teen is driving a vehicle owned and insured in his or her name, an accident can have long-term economic consequences, including significant insurance premiums and impact on driving history and insurability. The law states that the driver of a motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle.

 

But what about a teen driving a vehicle owned by a parent or guardian?  The Highway Traffic Act provides that the owner of a motor vehicle is liable for loss or damage, unless the motor vehicle was without the owner’s consent in the possession of some person other than the owner.  If you allow your teen to use your car, be wary.  Even placing restrictions on the teen’s use of a vehicle will not protect an owner from liability - if the teen is in possession of the vehicle with consent, the owner will be liable.

 

Also, if a young driver is permitted to drive a vehicle when he or she is “not authorized by law to drive” (for example, due to alcohol consumption or breaching the graduated licensing rules), the owner of the vehicle risks having no insurance coverage for the owner or the young driver in the event of an accident.  

 

Take the time to discuss road safety (#NTDSW) and compliance with the law before your teen gets behind the wheel.  And make sure you have enough liability and collision coverage….

 

 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - monique@wardlegal.ca  www.wardlegal.ca

 

 

 

 

 

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EMPLOYERS - OVERPAYMENTS TO EMPLOYEES SHOULD NOT BE DEDUCTED FROM PAY WITHOUT CONSENT

Even a mistaken over payment by an employer - it should be unilaterally deducted by the employer against future pay owed to the employee or against any other amount due and payable.

Most employers assume they can simply deduct it from wages payable, for example.

No so.

While the Employment Standards Act of Ontario, on its face, suggests that employer can deduct a mistaken over payment against regular wages, holiday pay or termination pay, for example, that is not likely the case. Even the Ministry of Labour's Policy and Interpretation Manual, which Employment Enforcement Officers use and follow to interpret and apply the Act, suggest that over payments can deduct without penalty. Often this arises in the context of employee's co-contribution to benefits coverage, for example, where the employer mistakenly does not deduct the employee's benefit co-payment from source at a regular pay day. 

However, in the case of Re All-Way Transportation Services, an Ontario arbitrator held otherwise. In that case, the arbitrator, relying on the power imbalance between employer/employee, ultimately held that the employer had no right to unilaterally deduct mistaken over payments (due to a payroll error) from wages of the employees.

Therefore, before doing so, you should speak with a qualified employment lawyer, if you, as an employer, propose to deduct any over payment to an employee from that person's regular wages, holiday pay or termination pay, directly or indirectly.

Chance are, you are doing do unlawfully.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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DOES ECONOMIC DOWNTURN/LOSS OF BUSINESS AVOID LIABILITY FOR TERMINATING AN EMPLOYEE? NO, NOT REALLY........

When assessing pay in lieu of reasonable notice in an employment termination case, Courts generally consider the employee’s position and responsibilities, length of service, age and the availability of other employment generally.

While employer’s have argued economic downturns as justification for termination, Courts have historically disregarded this argument and, in fact, in some cases given more reasonable notice when employers have taken this position.

There are, that I know of, only two cases in Canada in which the Court has considered this position by an employer and given some credit for it.

They are:

Gristey v. Emke Schaab Climatecare Inc. (Ontario) - The Court discounted the reasonable notice period by one-third to reflect the economic condition at the time and the employer’s precarious financial circumstances at the time; and

Lederhouse v. Vermilion Energy Inc. (Alberta) – The Court gave some credit to the employer when the termination took place before the depression in the oil and gas industry in Alberta (but noted that, if the termination had taken place during the recession, no credit would have been given).

So, while there is some, limited authority in Canada for employers to try to reduce pay in lieu of notice due to economic conditions, it is not generally accepted and is risky to rely on, especially if a case must proceed to trial.

As usual, the best strategy for employers is to ensure there is a written employment in effect, at the outset of the employment, containing properly-constructed provisions limiting pay in lieu of notice on termination.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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UNPAID TAXES - AVOIDING POTENTIAL HEADACHES IF YOU ARE APPOINTED THE EXECUTOR OR ESTATE TRUSTEE

Appointed as an executor or estate trustee by a Will? If the deceased had tax issues on death, it can be problematic for you and expose you to liability claims by the beneficiaries.

The CRA has a Voluntary Disclosure Program, which not only will help you, as executor, but increase the chance that the unpaid taxes are actually paid to the government in a timely way. The Program is not limited to executors, but can be a very helpful option.

The Program is supposed to encourage voluntarily disclosure of problems or errors in previous tax filings, without the imposition of penalties or interest such as, for example, on late payments to the CRA. The federal legislation also indicates that the CRA has the ability to waive interest on tax assessments for a ten-year period.

You can make the voluntary disclosure on a no-name basis. However, the CRA cannot enter into any agreement with someone anonymously, so disclosure of a name or identity will likely be required. There are specific periods of time, if voluntary disclosure is made, to submit any materials you rely on to request the waiver of interest or penalties by the CRA.

There are, of course, conditions. For example:

1.            There must be voluntary disclosure (i.e., made before the CRA takes steps to collect);

2.            A penalty would otherwise be imposed by the CRA on the liability;

3.            You have to make full and complete disclosure (i.e., honest disclosure); and

4.            The problem you identify must be at least past due for one (1) year.

Before you consider the Program, you should consult with a qualified chartered accountant, of course. There can be pitfalls and risks involved, so you should ensure to obtain proper advice before considering the Program. You should also obtain legal advice, too.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

 

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WHY DO I NEED A WILL - IS IT REALLY NECESSARY? YES - A FEW REASONS.........

There are many benefits to having a Will, too many to identify in a short blog.

Here are a few of what I consider the important reasons to have a Will.

With no Will:

- your Estate may be given to family members you do not wish to benefit (under Ontario’s Succession Law Reform Act)

- your separated spouse may benefit from a share of your estate, which you may not intend

- if you have a common law spouse, they may not benefit from your estate, but that may not be your intention

- your step-children may not be entitled to any benefit from your estate, if you intend to give them a benefit

- if you have a spouse, that person may be entitled to $200,000 of your estate ‘off the top’ (or the whole estate, if your estate is valued at less than $200,000), with anything more than this amount divided between your spouse and your children surviving you

- if you have no spouse or no children/grandchildren, etc., your estate may be divided between your remote family members/relatives, some of whom you may not even know

- your children may be entitled to receive their share at age 18, with no trust or other oversight of the money, such a a trust for them being set up to manage the money until you wish for them to have it  

- if you have minor children, the money may have to be paid into Court, which is a costly, litigious experienced often

- you will not be able to appoint a guardian for your minor children (effective for 90 days if you do so in your Will), or express your wishes for who should care for your children, which is often considered by the Court if conflict arises

…to ensure the right person is administering your estate, and that the administration occurs in a costeffective and timely manner.

- someone will have to hire a lawyer to apply to the Court to be given authority to administer your estate, which is often costly and time-consuming, until which time your estate will likely be frozen

- someone may apply for this authority who you do not want to be in charge of administering your estate

- your estate may have to pay more estate administration taxes to the Ontario government (1.5% on the value of your assets, generally) than if you plan your estate plan properly, leaving less for your intended beneficiaries

-   if you have any foreign property, it can be complicated and costly to try to administer that if you have no Will, leaving less for your intended beneficiaries

- you may pay more taxes to the federal government than is necessary (you are deemed to dispose of your assets at fair market value on your death and there may be tax payable on your capital gains on your assets), but your Will can help you defer taxes on your death (example, property you give to your spouse on death may defer the tax payable into the future)

- most importantly, often passing away without a Will will increase the risk of litigation among your family members (and extensive fighting, lawyers’ fees and time in the Court system) – a legacy you would likely prefer to avoid if you have a proper estate plan in place

- you lose control over your estate if you do not have a Will – your estate may go to beneficiaires you did not intend

Having your estate plan done by a qualified lawyer is fairly inexpensive and, in my view, well worth the investment. If you do not have a Will, there is certainly a risk that you (through your estate) will pay far more ultimately to litigation lawyers if a dispute arises because you had not Will in place. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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TIME TO VOTE - RIGHTS/OBLIGATIONS FOR EMPLOYEES/EMPLOYERS IN THE WORKPLACE FOR VOTING

This is a great summary of rights/obligations in the workplace for voting for the upcoming Oct. 19, 2015 federal election - for both employees and employers.

This article is by: Borden Ladner Gervais LLP - Dan Palayew, reproduced by Lexology.com

________________________________________________________________________________

"With the upcoming elections, we thought it would be timely to remind you of your obligations and employers with respect to employees taking time off to vote.

The Canada Elections Act requires employers throughout Canada to give their employees time off to vote in the upcoming October 19, 2015 federal election.

Everyone eligible to vote must have three consecutive hours to cast their vote on Election Day. If an employee ' s hours of work do not allow for three consecutive hours to vote during the electoral polling hours, the employer must give the employee time off to vote. The employee must be paid his or her regular wage during the time off for voting. Employers cannot require the employee to use a vacation day and are also prohibited from penalizing an employee in any way from taking time off to vote.

Two examples help illustrate when an employer is required to give an employee time off to vote.

1. Time off Required

An employee resides in a riding that has voting hours from 9:30 am to 9:30 pm. The employee's shift is 11 am to 7 pm.

This employee does not have three consecutive hours off work to vote when the polls are open because the employee is only off work during polling hours for 1.5 hours in the morning and 2.5 hours in the afternoon.

The employer, however, has the discretion to decide when the time off will be given and can require the employee to take 30 minutes off work to vote during the last 30 minutes of the employee's shift (rather than 1.5 hours off in the morning) since that will be least disruptive to the employer.

2. Time off not Required

A different employee with the same employer and in the same riding has a shift from 9 am to 5 pm.

This employee has more than three consecutive hours after work to vote during polling hours. Accordingly, this employee does not have to be provided with time off to vote during the work day.

Transportation Industry Exemption

An exemption applies if the employer is in the transportation industry. For the exemption to apply all four of the below criteria must be met:

  • The employer is a company that transports goods or passengers by land, air or water;
  • The employee is employed outside his or her polling division;
  • The employee is employed in the operation of a means of transportation; and
  • The time off cannot be allowed without interfering with the transportation service.

Penalties

Employers who fail to give employees time off to vote or fail to pay employees as required by the Elections Act are in breach of the Act. Employers could face a fine of up to $2,000, three months imprisonment, or both for each violation of the Act."

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FIGHTING FIRE - WITH KNOWLEDGE OF THE LAW

The cool fall air has finally arrived.  Cords of wood are being delivered and wood stoves are being fired up.  Gas fireplaces are being flicked on.  It’s also time for Fire Prevention Week (October 4-10, 2015).  

 

The best way to prevent injury and loss from fire is to be prepared.  But when you have been affected by fire, you need to know your legal rights and options for seeking compensation.

 

If you have suffered damage to your home or property due to fire or smoke damage, you need to be proactive in dealing with your homeowners insurance company to make a fire insurance claim.  Call your insurance agent or company immediately.

 

Fire loss claims are complex and time-consuming. You will be required to submit a “proof of loss claim” as soon as possible, with a time limit in which to do so under your policy.  If you are displaced from your home, you may claim living expenses.  You may have the option to repair or rebuild your home and it is important to have the right appraisers and contractors working for you. Your insurer may deny your claim based on misrepresentation on your application, failure to advise your insurer of a change of use in the property or that a renovation has been completed. You may need to resort to legal action to obtain compensation from your insurer.

 

Damage to homes and personal belongings are not the only devastating effects of a fire. On average, 19 children aged 14 and under are killed by fire or smoke each year in Canada and nearly 600 are hospitalized. Fire victims suffer physical pain and emotional trauma. The recovery process for burn injuries can be excruciating and lengthy.

 

You may have the right to bring a claim for damages against a negligent party who caused a fire, including property designers, owners, managers, landlords and product manufacturers.  A fire can be caused by a failure to maintain or replace wiring, improper storage of flammable materials, lack of or defective fire and CO2 detectors, obstruction of fire exits, non-compliant building code construction, exploding propane or gas tanks, etc.  Also, the origin of a fire may be the result of defective products, including electrical equipment, wiring, circuits or heaters.

 

And what about your duties and obligations?  It’s the law in Ontario for homeowners to have working smoke alarms on every storey of a home and outside all sleeping areas. Landlords are responsible for ensuring their rental properties comply with the law.  Tenants of rental properties who do not have the required number of smoke alarms should contact their landlord immediately; it is also against the law for tenants to remove the batteries or tamper with an alarm in any way.  Failure to comply with the Fire Code smoke alarm requirements could result in a ticket for $235 or a fine of up to $50,000 for individuals or $100,000 for corporations.

 

Ontario fire statistics reveal that in about 50 per cent of fatal home fires, the victims had no smoke alarm warning.  Smoke alarms are a proven way to prevent injuries and death from fires - see more here.

 

The Ontario Ministry of Community Safety & Correctional Services provides numerous resources (click here) about keeping your loved ones and property safe from fire.

 

Take some time to get prepared.

 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

 

More information? We're here to help - monique@wardlegal.ca  www.wardlegal.ca

 

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