Monthly Archives: March 2010
The Price of Loss of Companionship under the Family Law Act
How much is the companionship of your loved ones worth? To many, it’s simply priceless.
Unfortunately, as little as monetary damages may compensate the aggrieved, a price tag must be affixed to each claim in a lawsuit.
In Canada compensatory damages for the loss of companionship are capped at a modest amount compared with damages awarded in other common law jurisdictions, particularly certain US states.
In Fiddler v. Chiavetti*, the Ontario Court of Appeal ruled that claims of loss of guidance, care and companionship are treated different than other non-pecuniary general damages in personal injury cases; however, the appropriate amount of such damages must nonetheless be based on a range derived from an examination of like claims in like circumstances.
The Court of Appeal cited To v. Toronto Board of Education,^ a case involving claims of loss of companionship. In To, the assessment of $100,000 was viewed as being at the high end of an accepted range for companionship damages in 1992 when the To accident occurred. After consumer price index adjustments, the Court of Appeal came to the conclusion that $125,000 was the appropriate amount in 2005 at the time of the accident.
*[2010] ONCA 210
^(2001), 55 O.R. (3d) 641 (C.A.)
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
Suing without Using Your Legal Name
Is there a way to commence a lawsuit without using your own legal name?
The short answer is that in Canada it’s possible but not plausible, particularly if there is no minor involved.
The Supreme Court of Canada* has rendered a series of decisions confirming that the openness of the court is a fundamental aspect of Canadian democracy. The public is generally entitled to have access to the courts, unless there are overriding concerns that warrants anonymity.
What are these overriding concerns?
To put it simply, the threshold is high.
Potential embarrassment is not sufficient reason. In B.(A.) v. Stubbs+, the plaintiff sought to use a pseudonym to sue a doctor for negligence with respect to a failed penile-enhancement procedure, claiming that the publicity generated by the action contemplated would be traumatic, and if the request was not granted, he would be denied access to court. The judge ultimately decided that the plaintiff had not established the likelihood of irreparable harm if the request was not granted.
In coming to the conclusion, the judge utilized a three-part test:
- whether there is a serious issue to be tried
- the likelihood of irreparable harm
- the balance of convenience between the parties
My research suggests that most cases fail at the second stage of the test.
For example, in John Doe v. B. (S.)**, the Supreme Court of Newfoundland and Labrador refused to grant an order permitting a plaintiff to commence an action anonymously. The intended plaintiff claimed damages for sexual assault, whereas the intended defendant was in fact later charged and convicted of criminal offences arising from the sexual abuse addressed. The judged reasoned that there was no evidence by affidavit or from medical health professionals respecting the consequences of proceeding without the order sought.
In M.(S.) v. C. (J.R.)++, the motion for commencing a civil action by way of pseudonym was dismissed because there was no compelling evidence of irreparable harm.
However, the request to remain anonymous isn’t impossible. In T.(S) v. Stubbs^, (a case against the same doctor Stubbs) the judge, relying on the evidence of the psychiatrist who was treating the plaintiff, found that the plaintiff would suffer irreparable harm if his identity were to be made public and granted the request.
Ontario Court of Appeal Upholds Province’s “Stunt Driving” Law
Questions about the constitutionality of the amended Highway Traffic Act* broke out last year when a judge of the Ontario Superior Court ruled the “stunt driving” provision unconstitutional. It appears that the legal controversy over this provision has finally been resolved: it’s constitutional, for now.
The provision under contest is reproduced below:
No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.
The regulation defines “stunt” as “driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.”
Accordingly, drivers who exceed the speed limit by 50 km/h or more are subjected to fine or imprisonment or both, while drivers who exceed the speed limit by 49 km/h or less are subjected to a fine and the suspension of their driver’s licence.
The Court of Appeal upheld the provision addressed in its decision R. v. Raham,^ released earlier this month. Because of the potential punishment of imprisonment under the provision, its constitutionality depends on whether the defence of due diligence is available to the accused. If not, the provision would be unconstitutional because it violates the principles of fundamental justice as the legislature cannot imprison without fault.
Although the offence of speeding has been long established by the courts as one of absolute liability, meaning the intent to harm (mens reas) is not required, in the present case the Court of Appeal, having considered the potential punishment of imprisonment, declared that the defence of due diligence is available under the provision. Therefore, the law is constitutional.
*R.S.O. 1990 c. H8, s. 172
^[2010] ONCA 206
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
The Province of Toronto?
Conservative MPP Bill Murdoch (Bruce-Grey-Owen Sound), a backbencher of the party, suggests making Toronto the 11th province of Canada may be a good idea. Murdoch is concerned that the City of Toronto draws too much of the provincial government’s attention and rural Ontario suffers accordingly.
At 2.5 million, Toront’s population is much greater than that of any of the Atlantic provinces. The city’s operating budget of $9.2 billion also exceeds many provincial budgets.
Under section 146 of the Constitution Act, 1867, new provinces may be added to Canada. The last time it happened was in 1905, when provinces of Alberta and Saskatchewan were created.
Tagged constitutional law, current affairs, in the news
A Brief Note on Guardianship of Minor Children’s Property
In Ontario, a parent is automatically the guardian of person of his or her minor child. However, a parent is not automatically the guardian of property for that minor child. A parent can only receive and manage property on behalf of a child by law, court order, or other documents.
Minor children may be entitled to property or a large amount of money under various circumstances. For example, a child may be entitled to monetary compensation under an insurance policy.
How can a parent obtain authority to manage and hold property on behalf of his or her child?
The Children’s Law Reform Act* stipulates that if the value of the property is under $10,000, the parent or custodian may receive it on behalf of the child.
Alternatively, a parent may make an application before the court to be appointed as the guardian of the property of the child. By law the Office of the Children’s Lawyer must be notified of the proceeding, so that the minor’s interest may be adequately protected.
Once appointed, the guardian of property must keep careful records (called “accounts”) of all dealings respecting the property. The guardian also must comply with Trustee Act requirements for the investment of trust funds.
Finally, once the minor turns 18, the guardian will have to transfer of the child’s property to the child.
* R.S.O. 1990, c. C.12 (as am.)
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
Tagged children, custodian, Family Law, guardian, property
New Restriction on Service under the Amendmended Family Law Rules
As of March 1, 2010, amendments to certain sections under the Family Law Rules* come into effect. In particular, there are significant changes on Rule 6.
Rule 6 (1.1) has been added prohibiting persons under the age of 18 from serving documents.
Rule 6 (4.1) has been added prohibiting the party from serving the following documents:
- Form 8: Application (general)
- Form 8A: Application (divorce)
- Form 8B: Application )child protection or status review)
- Form 8B.1: Application (status review for Crown ward and former Crown ward)
- Form 8B.2: Application (general) (Child and Family Services Act cases other than child protection and status review)
- Form 8C: Application (secure treatment)
- Form 8D: Application (adoption)
- Form 8D.1: Application (dispense with parent’s consent to adoption before placement)
- Form 15: Motion to Change
- Form 15A: Change Information Form
- Form 23: Summons to witness
- Form 23A: Summons to witness outside Ontario
- Form 31: Notice of contempt motion
- Form 34L: Application for openness order
- Form 34N: Application to change or terminate openness order
- A notice of motion or default hearing in which the person to be served faces a possibility of imprisonment
Instead, someone other than the party must perform the service. Typically law firms hire professional process servers to minimize safety concerns.
These changes are not included in most of the print materials that are available commercially. When in doubt, readers are encouraged to check the Ontario e-laws website for the most current version of the legislation or regulation addressed.
*O. Reg. 114/99 as am.
To book an appointment regarding your family law matters, contact us at 416-433-5531
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
A Brief Note on the New Form 35.1: Affidavit in Support of Claim for Custody or Access, Required under the Amended Family Law Rules
Under the recently amended Family Law Rules*, Form 35.1: Affidavit in Support of Claim for Custody or Access is required for claims of custody or access of minor children.
In this document, the affiant (the person who swears that the information contained is true) will have to provide information as follows:
- aliases and other names ever used
- children involved in the application
- other children not involved in the application
- other court cases involving the custody of or access to any children
- court cases involving child protection matters
- criminal convictions for which a pardon has not been granted
- current criminal charges
- relevant incidents of domestic violence or abuse, whether against the spouse, a member of the household or the children
- the history of the children’s residency
- care plan for the children
For non-parent custody applicants (e.g. a grandmother), a police check must be attached to the affidavit.
In addition to the police check, the non-parent must provide the following:
- history of residency since adulthood
- consent to the court authorizing the reporting of any involvements with the various children’s aid societies
The affiants are also obliged to report any errors and ommissions and to provide with the court updates if relevant information subsequently becomes available.
*O. Reg. 114/99, R. 35.1
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
