Legalese Dictionary

Family Law Dictionary: Custody of Children

Posted in: "All, Family Law, Legalese Dictionary by Admin | 1 Comment Saturday, January 9, 2010

In family law, custody refers to the legal relationship between a parent and his or her child, including the parent’s right to make decisions on behalf of the child and the parent’s duty to care for the child and look after the child’s best interests.

In Ontario, custody is governed by the Children’s Law Reform Act.* Under the Act, in the absence of a court order or a separation agreement, the father and the mother are equally entitled equally to custody of the javascript:;child.

If the parents separate, the parent living with the child will have the rights of the custodial parent, while the custodial rights of the parent not living with the child becomes suspended until a separation agreement or court order provides otherwise.

*R.S.O. 1990, c. C.12

read more…

Tagged , , , , , , ,

A Brief Note on Child Support and Extraordinary Expenses – What Counts?

Posted in: "All, "Brief Note" Series, Family Law, Legalese Dictionary by Admin | 2 Comments Friday, December 4, 2009

As I mentioned in my blog yesterday (“A Brief Note on Child Support and Undue Hardship“), there are two kinds of child support payable in Ontario – the basic amount and the extraordinary amount. While the basic amount refers to the amount set out in the Child Support Guidelines,* what constitutes “extraordinary expenses” is subject to interpretation.

For the purposes of this blog, we will refer to the federal version of the Guidelines.

According to the regulation, the term “extraordinary expenses” means “expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table.”

In plain language, the term refers to the extra costs of raising the children that the recipient spouse can not seasonably afford on his or her own. The granting of extraordinary expenses means that the other spouse will have to help pay part of these costs.

Examples of extraordinary expenses may include the following:

  • child care expenses
  • medical and dental insurance premium attributed to the child
  • tuition or fees for educational programs to meet the child’s particular needs
  • expenses for post-secondary education
  • costs for extracurricular activities

In determining whether the extraordinary expenses are allowable, the court may also consider the following:

  • the amount of expense in relation to the income of the spouse requesting such expenses
  • the nature and number of the educational programs and extracurricular activities
  • any special needs and talents of the children
  • the overall cost of the program and activities

read more…

Tagged , , , , , , , ,

A Brief Note on Child Support and Undue Hardship

Posted in: "All, "Brief Note" Series, Family Law, Legalese Dictionary by Admin | No Comments Thursday, December 3, 2009

In Ontario there are two kinds of child support payable – the basic amount and the extraordinary amount. (For more information, see my December 4 blog “A Brief Note on Child Support and Extraordinary Expenses.”)

The basic amount (also called “table amount”) of child support payable is determined solely by the income level of the support payor under the Child Support Guidelines.* In other words, the income level of the recipient is irrelevant for the purpose of determining the basic amount payable.

Exceptions to the basic amount are few. The most commonly seen exception is for “undue hardship.”

For the purposes of this blog, we will limit the discussion to the federal Child Support Guidelines, enacted under the Divorce Act.+

There are several circumstances that may support the claim of undue hardship: an unusually high level of debts incurred to support the receiving spouse and children prior to the separation or to earn a living; unusually high expenses in relation to exercising access; and a legal duty to support another person.^

However, to claim undue hardship, the court must consider differences of living standards between the households. Under the law, the claim for must be denied if the court determines that the household of the spouse claiming undue hardship would have a higher standard of living than the household of the other spouse.

In comparing standards of living, the court would follow the schedule under the regulation, which provides an elaborate calculation formula. The formula provided is complicated, to say the very least, especially if you attempt to do the calculation with pen and paper. Therefore, most family law practitioners use a specialized computer program.

read more…

Tagged , , , , , ,

A Brief Note on the Limitation Period in Ontario

Posted in: "All, "Brief Note" Series, Legalese Dictionary by Admin | No Comments Thursday, December 3, 2009

“Limitation period” is a legal jargon meaning a statutory term after which a lawsuit (or prosecution) cannot be brought in court.

In Ontario the limitation period is governed by the Limitations Act, 2002. It’s interesting to note that in contrast to the law in other countries, such as the US, the Ontario Act is not applicable to offences under the Criminal Code^ because the Code falls under federal jurisdiction.

The basic limitation period in Ontario is two years from the day on which the claim was discovered.# For example, if you were involved in an automobile accident and suffered minor injuries, you would have to bring your claim before the court within two years, or your claim may be barred by the statute.

Nonetheless, the Act provides numerous exceptions under which the limitation period may differ from the basic two-year rule. Therefore, in the event that you wish to commence a proceeding, you should act promptly and consult with a lawyer to ensure that your claim is not barred by the statute.

*S.O. 2002, c. 24, Sch. B

^R.S.C. 1985, c. C-46

# Limitations Act, 2002, s. 4, 5

read more…

Tagged , , , , , , , ,

Legalese Dictionary: E. & O.E.

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Tuesday, November 24, 2009

E.&O.E., or “Errors and Omissions Excepted,” is a bit of trade jargon commonly used in financial service industries. It means that the author cannot be held liable for errors and omissions (if any) shown on the statement.

For example, when you wish to discharge a mortgage, the mortgagee bank will fax you a statement showing clearly  how much is owed on the property as of the closing date. Because these tasks are generally handled by clerks who in turn rely on computer print out, by indicating “E.&O.E.” the bank disclaims any mistakes the clerk or the computer may have made.

Legally speaking, however, the E.&O.E. disclaimer is far from absolute. While it may offer the company a right to hire a lawyer to disclaim liability, whether the disclaimer actually holds weight in front of a judge or not is an entirely different matter.

read more…

Tagged , , , , , , , , ,

A Brief Note on the Canadian Pension Plan (CPP) Disability Benefits

Posted in: "All, "Brief Note" Series, Administrative Law, Business Development, Legalese Dictionary by Admin | No Comments Monday, November 16, 2009

The Canadian Pension Plan provides disability pension benefits to persons with disabilities. To become eligible to the benefits, a claimant must meet the financial contribution threshold during the years prior to the claim.

The tests for the CPP disability benefits as set out under the legislation* are as follows:

a person shall be considered to be disabled only if he is determined to have a severe and prolonged mental or physical disability, where

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death

Most applicants to the CPP disability benefits meet the legislative requirement of having prolonged disabilities. The contention, however, mostly rests on the determination of whether the disability is severe enough to warrant the granting of benefits.

The Federal Court of Appeal ruled in the case Villani v. Canada (A.G.)^ the individual words of “regularly” and “substantially” must be given due emphasis when applying the legislative requirement.

For example, the word “regularly” means “at interval or times” and not “at all times,” while the word “substantial” encompasses “actually existing, not illusory, of real importance or value, practical” and not “completely.”

In addition to the considerations above, the Court commented as follows:#

What the statutory test for severity does require, however, is an air of reality in assessing whether an applicant is incapable regularly of pursuing any substantially gainful occupation.  Naturally, decision-makers already adopt a certain measure of practicality in their severity determinations.  As an obvious example, the scope of substantially gainful occupations suitable for a middle-aged applicant with an elementary school education and limited English or French language skills would not normally include work as an engineer or doctor.

In summary, the legislative test must not be applied in a vacuum. Rather, the particular circumstances of the applicant must be taken into account. If the applicant satisfies the decision maker that he or she cannot largely pursue gainful employment, he or she ought to be granted with the benefits.

* Canada Pension Plan, R.S>C. 1985, c. C-8, s. 42(2)

^ [2001] F.C.A. 248, [2002] 1 F.C. 130 (CanLII)

# Ibid., at para. 46

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 , , , , , , ,

Suing a Foreign Resident

Posted in: "All, Legalese Dictionary by Admin | No Comments Thursday, November 12, 2009

Traditionally in common law, the courts are territorial. That means that the court’s jurisdiction can only reach as far as the sovereign territorial limits. Because jurisdiction is territorial, a state’s law has no binding effect outside its jurisdiction. Consequently, the courts are reluctant to permit proceedings involving defendants residing outside the jurisdiction.

However, with the advancement of technology, international transactions now are seen as matters of routine. In a decision made by the Supreme Court of Canada, the Court held that so long as there’s a real and substantial connection to the legal forum, the court may exercise jurisdiction over the foreign defendant.*

In civil proceedings in Ontario, the court’s permission (“leave”) is still largely required for service of a defendant who resides outside Ontario. However, in many instances the required leave is no longer needed. Below is a partial list of circumstances where leave is not required when suing a foreign resident:^

  • in respect of real or personal property in Ontario
  • in respect of a tort committed in Ontario
  • in respect of damage sustained in Ontario arising from a tort, breach of contract, breach of fiduciary duty or breach of confidence, wherever committed
  • for an injunction ordering a party to do, or refrain from doing, anything in Ontario or affecting real or personal property in Ontario
  • against a person outside Ontario who is a necessary or proper party to a proceeding properly brought against another person served in Ontario
  • against a person ordinarily resident or carrying on business in Ontario

If the case doesn’t fall under one of the exemptions provided by the Rules, one may seek leave from the court to commence a proceeding against a foreign resident.

*Morguard Investment Ltd. v. De savoye, [1990] 3 S.C.R. 1077

^Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 17

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 , , , , , ,

A Brief Note on the Registered Disability Savings Plan (RDSP)

Posted in: "All, "Brief Note" Series, Administrative Law, Legalese Dictionary by Admin | No Comments Tuesday, November 10, 2009

What Is the RDSP?

The Registered Disability Savings Plan (RDSP) is the Canadian federal government’s initiative in assisting individuals with disabilities.^ To become eligible for the RDSP, you must be a Canadian resident under 60 years of age and eligible for the Disability Tax Credit.*

Once an RDSP account is open, anyone with written permission can contribute to the program. Unlike the Registered Retirement Savings Plan (RRSP), there’s no limit on the annual contribution. The annual deadline for contribution is December 31 each year.

There is, however, a lifetime limit of $200,000. Contributions to an RDSP are not tax deductible and can be made until the end of the year in which the beneficiary turns 59 years of age.

Perhaps the biggest incentives for opening an RDSP are the RDSP grants and bonds programs.#

The RDSP Grant

The Government of Canada will pay matching grants of 300, 200, or 100 percent, depending on the beneficiary’s family income and the amount contributed. An RDSP can receive a maximum of $3,500 in matching grants in one year, and up to $70,000 over the beneficiary’s lifetime. A grant can be paid into an RDSP on contributions made to the beneficiary’s RDSP by December 31 of the year the beneficiary turns 49 years old.

The RDSP bond

The government will pay income-tested bonds of up to $1,000 a year to low-income Canadians with disabilities, regardless of the amount contributed. The lifetime bond limit is $20,000. A bond can be paid into an RDSP until the year in which the beneficiary turns 49 years old.

However, there’s a catch – the grants and bonds must remain in the RDSP for 10 years. Otherwise they will have to be repaid back to the government.

read more…

Tagged , , , , , , ,

Legalese Dictionary: Trust Law 101

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Tuesday, November 10, 2009

What Is Trust Law?

In common law, a trust refers to an arrangement by which one person holds or deals with property for the benefit of another.

The person creating the trust is called the settlor, while the person enjoying the benefit is called the beneficiary. The person who administers the property under the trust is called the trustee.

A person may be a settlor, a trustee and a beneficiary of the same trust.*

The Three Certainties

Generally, a trust must have three certainties:

  • certainty of intention: The language of the alleged settlor must be imperative.
  • certainty of subject matter: The trust property must be certain.
  • certainty of objects: The beneficiaries must be certain or clearly identifiable.

Terminology

A bare trust (also known as a simple trust or a naked trust) refers to a trust where the trustee holds property without further duty to perform.

An inter vivo trust (also known as a living trust) is one made by deed, oral declaration, or in writing to take effect during the lifetime of the settlor.

A testamentary trust is one created under a will. Because a will can become effective only upon death, a testamentary trust is generally created at or following the date of the settlor’s death.

A spendthrift trust is one created to protect the beneficiaries from their inability to properly handle money. The funds often become payable after the beneficiaries come of age.

Statutory Trust and Deemed Trust

By the operation of law, certain funds advanced from one person to another for the specific purpose of paying a third can become impressed with a trust and may not otherwise be appropriated.

For example, under the Construction Lien Act,^ all funds received by an owner that are to be used in the financing of the improvement, constitute a trust fund for the benefit of the contractor. This is called the “owner’s trust.”

Similarly,  all funds owing to a contractor or received by a contractor or subcontractor on account of the contract price of an improvement constitute a trust fund for the benefit of the subcontractors and other persons who have supplied services or materials to the improvement. This is called the “contractor’s trust.”

*Note: This kind of “creative” trust, when used for ulterior purposes, e.g., avoiding creditors or tax authorities, is voidable.

^R.S.O. 1990, c. C30

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.

PswLaw – Lawyer for your small business.

Tagged , , , , , , , , , , , , , , ,

Ontario Bans Hand-Held Devices While Driving

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Monday, October 26, 2009

The new Countering Distracted Driving and Promoting Green Transportation Act came into force today. The Act amends various parts of the Highway Traffic Act^ and the Public Vehicles Act.# The supplementary regulation reflecting the amendment of the Highway Traffic Act also came into force today.

The legislative explanatory note provides a summary to the amendment of the Highway Traffic Act:

Driving a motor vehicle with the display screen of a television, computer or other device visible to the driver is prohibited. The display screens of global positioning system navigation devices, hand-held communication and similar prescribed devices, commercially-used logistical transportation tracking systems, collision avoidance systems and instruments, gauges and systems providing information regarding the status of systems of the motor vehicle are exempted from the prohibition. Drivers of ambulances, fire department vehicles and police department vehicles are also exempted. The Minister of Transportation may provide for further exemptions by regulation.

Driving while holding or using a hand-held wireless communication device or electronic entertainment device is prohibited. Use of such devices in the hands-free mode is exempted. Use of such devices while the motor vehicle is off the travelled part of the road, not in motion and not impeding traffic is exempted. Drivers of ambulances, fire department vehicles and police department vehicles are exempted from the prohibitions respecting hand-held wireless communication devices, as are any drivers using the devices to contact ambulance, police or fire department emergency services. The Minister of Transportation may prohibit holding or using other devices by regulation and may provide for further exemptions by regulation.

Keep in mind that many public servants, such as the police and firefighters are exempted from this regulation. Therefore, don’t scream “hypocrisy” when you see police officers using their two-way radios or laptops. For the rest of us, we’re allowed to do the following:

  • talking on the phone using a hands-free device
  • pressing a button to accept or decline answering a call if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position.
  • using a GPS device
  • using a collision avoidance system device that has no other function

However, the following tasks are not OK under the new law:

  • watching a DVD while driving
  • texting while driving
  • dialling numbers by hand while driving
  • using a laptop while driving

Of course, the examples are not exhaustive. If you’re unsure about what you can or cannot do while driving, please consult a properly licensed lawyer.

*S.O. 2009 c.4

^R.S.O. 1990, c. H.8

#R.S.O. 1990, c. P.54

** O. Reg. 366/09

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 , , , , , , , ,
Page 3 of 812345...Last »