The parent who does not have primary physical residence of the child will generally have to pay, however, the amount of support that will be paid may be less if the child spends at least 40% of his or her time with an access parent.
Since the child is spending almost equal amounts of time with both parents then the expenses that they may have, that are associated with taking care of the child, will be more or less the same and as a result they should not have to pay an excessive amount of support which could then result in a windfall gain to one parent and undue hardship to the other.
It seems as though, however, the courts are most concerned with the standard of living of the child involved and will probably try to award an amount that will allow the parents to maintain that standard of living.
Establishing the 40% threshold requirement may be difficult as courts have been inconsistent with the factors used in order to make this determination. Some judges include weekends, holidays and overnight stays (i.e. the hours during which the child is sleeping) in the calculation of the 40% whereas others do not. Unfortunately, there is no bright-line rule dictating what is required in order to meet the threshold.
Social media is more popular than ever now, however, it can create opportunities for abuse and can bring out the worst in people, often without thought as to the consequences. When something is posted on social media sites, it is considered “published” and is therefore subject to the laws applicable to traditional media, such as newspapers. Accordingly, claims for defamation and hate speech as well as dismissal or disciplinary action for social media misconduct become very real possibilities.
Defamation is the act of harming the reputation of another by making a false statement to a third person which has the effect of injuring that person’s good name or reputation.
The courts recently granted a Facebook user an interdict preventing a friend from posting about his personal life on the platform after she defamed him thereon. In another case a woman was awarded damages after claiming that her former husband and his new wife were bad-mouthing her on Facebook.
Hate speech is any speech, gesture or conduct, writing, or display which is prohibited because it may incite violence or prejudicial action against a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristic.
Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.
Dismissal from Employment
Disciplinary action, including dismissal for social media conduct have increased drastically over the past few years often following on the heels of comments made or posted on social media sites by employees.
Some of the grounds for dismissals have included derogatory Facebook status updates, an employee criticizing management, criticizing the employer, employees using social media to convey internal matters of the business to former employees, etc.
Avoid Problems Altogether
To avoid legal or disciplinary action arising from your conduct on these social platforms, you should consider the following:
The defence against defamation is that the publication was true and in the public interest. Make sure you can back your comments with substantiating evidence and factual information. Accordingly, making a comment about a friend on a matter that is not in public interest could be defamatory even if it is true.
Regularly check your social media profiles to ensure that your name is not being linked to defamatory statements of others.
Do not post anything which could be regarded as incitement to cause harm based on race, religion, ethnic background, gender, sexual preference etc.
Adhere to the social media strategy and policies of your workplace. Find out what these are, and if these are not in place, keep the following guidelines in mind:
Keep posts ethical and respectful.
Do not engage in online activities which could harm the reputation of the company.
Do not disclose any confidential or business information of the company.
Do not discuss colleagues, managers or information pertaining to the company.
On June 1, 2017, the Government of Ontario introduced Bill 148, the Fair Workplaces, Better Jobs Act, 2017, which proposes significant amendments to Ontario’s employment and labour legislation. The Bill was introduced following the publication of the final report from the Changing Workplaces Review, which recommended extensive changes to modernize Ontario’s workplace laws.
If passed, Bill 148 would make a number of modifications to the leaves of absence provisions in the Employment Standards Act, 2000, SO 2000, c. 41 (“ESA”). In particular, the personal emergency leave provision, which currently provides up to 10 days’ unpaid leave per year for employees of employers who employ at least 50 employees, would be modified to:
(a) remove the 50-employee threshold, thereby granting personal emergency leave to all employees covered by the ESA;
(b) provide that an employee’s first two days of personal emergency leave in each calendar year shall be paid at his or her regular rate;
(c) expand the circumstances for which an employee may take personal emergency leave to include sexual or domestic violence, or the threat of sexual or domestic violence, experienced by the employee or a family member; and
(d) prohibit employers from requiring an employee to provide a medical certificate to verify his or her request for personal leave (although an employer would still be permitted to ask an employee to provide “evidence reasonable in the circumstances”).
In addition, the maximum duration of family medical leave would be increased from eight weeks in a 26-week period to 27 weeks in a 52-week period, and the existing crime-related child death or disappearance leave would be split into two separate unpaid leaves—child death leave and crime-related child disappearance leave—of up to 104 weeks each. The entitlement to child death leave would no longer be limited to circumstances where an employee’s child has died as a result of crime, but instead would be available whenever an employee’s child (under 18 years of age) has died for any reason.
Recorded communications between parties will only be admitted as evidence if the communication is with the person recording it and not with a third party. Recorded communications by a third party may be admitted as evidence if the person being recorded is made aware that they are being recorded. There are limited situations where an illegally obtained recording may be admitted into evidence where the probative value to a judge outweighs the prejudice to the person being recorded.
Generally, Judges do not admit recordings of conversations between parent and child or between parents and third parties like doctors or supervisors. Recordings are also excluded unless the issue before the judge is the parties’ interaction post-separation. Specifically:
Judges admit recordings if it is the only way to know the truth about the parties’ interactions regarding the children. Judges encourage the use Emails, texts and communication books since they provide a permanent record of the parties’ interactions and encourages the parties to be on their best behaviour.
A good rule of thumb is to always assume that your communications between the other party, whether written or by telephone, are recorded and such recordings can be used against you in court. In addition, you should always discuss with your lawyer your intention to record your ex prior to doing so.
When a marriage is ending, who gets the family pets? Are they merely property to be divided between the parties separating, or are they more than just property and the best interests of the family pet, like the best interests of the children, ought to be taken into consideration when deciding who gets the family pet?
Currently, the law in Ontario is that family pets are no different than property. That means that, generally, whoever brought the animal into the marriage will retain ownership of that animal. Cases where the animal was brought into an existing marriage are obviously more difficult. There are some judges who have recognized that family pets are more than just property and have attempted to consider what was in the best interests of the animal when deciding custody of that animal, however, that is not currently the law in Ontario. Treating pets as property may seem antiquated but with the various issues to deal with during a divorce, keeping pets out of litigation is likely the wisest course.
An alternative route such as mediation may provide a more cooperative, less-rigid context in which to settle pet-related issues. In mediation, ex-spouses can have greater flexibility to contemplate the best interests of the pet and create customized solutions for custody, visitation and financial support.
It may not seem fair that your after-work activities could affect your employment, but it’s an implied term of every employment contract that the employee will faithfully perform his or her duties, including refraining from behaviour that negatively impacts, or is likely to negatively impact, the employer’s legitimate business interests.
That means racist or sexist comments made on social media, or video’s of yourself engaging in less than desirable activities, could result in discipline from your employer or even termination. Generally, your actions or comments can negatively impact your employer where:
• The nature of the conduct prevents the employee from continuing to perform his or her duties (e.g., loss of credibility in a position of trust)
• Co-workers are reluctant to continue to work with the employee as a result of learning about his or her conduct
• There is a risk of injury to co-workers or members of the public
• The conduct has harmed or will harm the employer’s reputation or brand
Nowadays, employers often perform social media checks on their employees and it is more common for members of the public to contact your employer if they find your conduct particularly offensive.
Some may remember in 2015 there was an offensive trend of heckling female reporters on air by yelling “F--- her right in the p----.” The trend was known by the acronym FHRITP. Outside a Toronto FC soccer game in 2015, a group was asked by a reporter why they did it and why they thought it was funny. One in the group, Shawn Simoes, stepped forward to defend the conduct. Ultimately, it became known that Simoes worked for Hydro One and the incident became synonymous with Hydro One, which obviously had a negative impact on its reputation. Simoes’ was quickly fired although it's not known whether he was terminated for cause or not. The lesson here is that even though you may be “off the clock”, you still have a duty not to engage in public behaviour that could harm the reputation of your employer.
Like most answers from lawyers, it depends.
If the employer had valid “cause” to terminate your employment, then the employer does not owe you anything. If you are terminated “without cause”, then the employer is required to give you notice of your termination, or pay in lieu of. Most people have heard of the Employment Standards Act (ESA), but it’s important to recognize that this is minimum legislation. For some employees, the difference between ESA entitlement versus common law entitlement can be as much as 2 year’s salary!
If you’re an employee facing termination, or an employer considering the termination an employee, it’s best to speak with an employment lawyer before doing anything. Getting the right advice today will help avoid disputes tomorrow.
You are separated when you are not living together and it is not likely that you will live together again. Usually you will need to decide who will stay in the family home, who will take care of the children, who will pay family debts, how much support will be paid, and how will property be divided?
You can resolve things in different ways.
Unless the circumstances of your separation make it unsafe to negotiate, it is better if the two of you can agree on how to settle the issues between you through negotiation, mediation or collaborative family law. Court proceedings can be very expensive and take a long time.
Signing a separation agreement is a very important step. Your decisions now can affect you and your children for the rest of your lives. If in the future, one of you decides you don’t like the agreement, you can try to negotiate a new agreement. If you cannot agree you have to go to court and ask a judge to change it. A separation agreement is a contract that you must honour.
The law leaves the decision about settling your family law issues to you. You may have a hard time proving that you and your spouse had promised to settle things a certain way if you do not have a written and signed separation agreement.
A lawyer or mediator can help you decide what would be best for you and ensure the agreement is legally binding.
If you live with someone without being married you are in a common law relationship or are cohabiting.
Common law couples do not have the same rights as married couples to share the property they bought when they were living together. Usually, furniture, household belongings and other property belong to the person who bought them. Common law couples also do not have the right to divide between them the increase in value of the property they brought with them to the relationship.
If you have contributed to property your spouse owns, you may have a right to part of it. Unless your spouse agrees to pay you back through negotiation, mediation, collaborative law or arbitration, you may have to go to court to get back your contribution.
If your common law relationship ends, and you do not have enough money to support yourself, you can ask your spouse to pay support. You can ask for support for yourself if you have been living together for three years, or if you have lived together for less time and have had or adopted a child together. You and your spouse can settle on an amount for support through negotiation, mediation, collaborative law or arbitration. If you can’t resolve the issues, you can go to court and ask a judge to decide if you should get support.
If you and your spouse have or adopt a child together, you can ask for support for that child. Children of parents living in a common law relationship have the same rights to support from their parents as the children of married couples. If your spouse treated your child as their child while you lived together, you can also ask for support. You can settle on support for your child through negotiation, mediation, collaborative law or arbitration. If you can’t resolve the issues, you can go to court and ask a judge to order your spouse to pay support for that child. The amount of support is set under the Child Support Guidelines.
As part of a support order for you or your child, you may also ask to stay in the home you shared when you lived together. The judge can order this even if you do not own the home, or if your name is not on the lease. This is different than for married couples. Married couples automatically have an equal right to stay in the home. If you do not get support, you do not have the right to stay in the home if it is not yours.
Couples in a common law relationship can sign a cohabitation agreement to protect their rights.
A cohabitation agreement can spell out what you both want your financial and family arrangements to be. It can say who owns the things you buy while you are living together. It can say how much support will be paid if the relationship ends and how your property will be divided. It can say who has to move out of the home if the relationship ends.
It cannot say who will have custody of, or access to, your children if your relationship ends. You cannot decide this before the relationship is over.
Both of you must sign a cohabitation agreement in front of a witness for it to be legal. The witness must also sign the agreement. Once you have signed a cohabitation agreement, you must follow what it says. If one of you decides you don’t like the agreement, you can negotiate a change to the agreement. Any change must also be in writing and signed in front of a witness. If you cannot agree, and you have now separated, you have to go to court and ask a judge to decide the issues between you.
You should each speak to a different lawyer and exchange financial information before signing a cohabitation agreement.
When you get married, the law treats your marriage as an equal economic partnership. If your marriage ends, the value of the property you acquired while you were married and the increase in the value of property you brought into your marriage will be divided in half: one half for you and one half for your husband or wife. There are exceptions to this rule.
The law also provides that you and your husband or wife have an equal right to stay in the family home. If you separate, you will have to decide who will continue to live there.
In addition, Ontario’s family laws provide that you may be entitled to financial support for yourself and your children when your marriage ends.
Getting married results in your existing will being revoked, unless the will states that it was made in anticipation of the marriage. You may therefore need a new will after you marry.
Couples who feel that the law does not suit the kind of relationship they have can make other arrangements in a marriage contract.
In a marriage contract you can say what you expect from each other during your marriage. You can list property that you are bringing into the marriage and say how much it is worth and who owns it. You can say exactly how you will divide your property if your marriage ends. You do not have to divide your property equally. You can describe how support payments will be made if your marriage ends. You can also make plans for the education and religious upbringing of your children, even if they are not yet born.
There are some things you cannot put in your marriage contract. You cannot make promises about custody and access arrangements for your children if your marriage breaks down. You cannot change the law that says each spouse has an equal right to live in their home.
Even if you’re already married, you can still enter into a Marriage Contract.