LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday December 14, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on Dec 14, 2016 at 6:55am PST

Did you know that...

Where a parent repeatedly interferes to improperly prevent a child from building a positive relationship with the other parent, a court could find that parental alienation has occurred.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Viola Desmond to Grace the $10 Bill

Viola Desmond, known as the Canadian Rosa Parks, will officially grace the front of the $10 Canadian bill in 2018.

In 1946 Nova Scotia, Ms. Desmond refused to sit in a movie theatre balcony designated for people of her race, and went to the main floor instead. She was forcibly removed from the theatre, injuring her hip and then arrested. As if that wasn't enough, she was charged with tax evasion over the 1 cent difference between the balcony and main floor tickets and fined $20, which she paid.

Instead of backing down, she fought the charge with lawyer, Frederick William Bissett. The government’s argument at the time was that she had evaded this 1 cent tax. Bissett argued that she was wrongfully accused of tax evasion, not racial discrimination and was unsuccessful.  

In 2010, she was granted a posthumous free pardon and the government of Nova Scotia apologised to her family.

An interesting fact about Ms. Desmond is that she began the Desmond School of Beauty Culture in Nova Scotia to allow black women who were rejected from white only training, a way ahead - many went on to open businesses. 

It may be just a face on money, but it is a widespread visual reminder that rejecting what was once ‘legal’ and ‘socially acceptable’ is no longer.

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Are Non-Compete and Non-Solicitation Clauses Actually Enforceable?

BY SIMRAN BAKSHI, ASSOCIATE LAWYER 

Employment agreements will often include language that is intended to restrict the actions of employees following the end of their employment. These types of clauses, typically relating to confidentiality, non-solicitation and non-competition, are aptly referred to in the employment law world as restrictive covenants.

Most commonly, many employers will seek some assurance that their once all-star employees do not solicit business away from the company. In some cases, employers may even be concerned about former employees leaving a company and going on to compete against it in the same market.

The interests of employers in protecting their businesses must of course be balanced against the rights of employees to pursue their trade of preference

Given their competing interests, it is not all that surprising that restrictive covenants are often controversial and subject to challenge before the Courts.

In determining whether such terms should be enforceable, the Court will not only give weight to the parties’ respective interests, but will also consider the context in which the restrictive covenants were agreed to. While the Court will look to give effect to the parties’ freedom to contract with one another, it will also consider the power dynamics of the parties in negotiations of terms of employment.

The legal test developed by the Supreme Court of Canada in view of these varying interests is as follows:

1. Does the employer have a proprietary interest entitled to protection? In other words, an employer must have a legitimate reason for seeking to restrict a former employee from having contact with clients, soliciting business or otherwise competing.  Common proprietary interests often include protecting trade secrets, confidential information and trade connections. As an example, it would likely be unreasonable for an employer to include a non-competition clause for its junior administrative support staff, unless of course it had legitimate reasons for doing so.

2.     Are the temporal and geographic elements of the agreement too broad? What this means in plain English is that the restrictive clause cannot be unnecessarily broad. In order to assess this, the Court will consider whether the geographic and time restrictions imposed are reasonable, having regard to a number of factors including: the nature of the industry; the type of relationship between the parties; and the position of the departing employee including the level of trust and confidence he or she enjoyed. While it may for instance be reasonable to limit a senior financial adviser from soliciting the clients that he or she worked with while at the company for a one-year period, it would in all likelihood be unreasonable to impose an indefinite restriction for a junior level bookkeeper to have contact with any of the company’s clients, past, present and future;

3.     Is the covenant unenforceable as being against competition generally, and not limited to proscribing solicitation of clients of the former employee? In other words, did the employer really need a non-compete clause to serve its interests or would a non-solicitation clause have sufficed? As a general principle, non-competition clauses are generally frowned upon in the employment context, though it may have some greater enforceability in circumstances involving the sale of business. That is, preventing an employee from competing in some form or capacity with the employer is not generally practical. However where one party sells its business to another, it would make sense to have some limitations in place to bar the seller from opening shop down the street.

The question of whether a restrictive covenant is reasonable, and accordingly enforceable, must be viewed in context of the employment circumstances overall. What is the nature of the industry? How were the terms of employment negotiated and agreed to? Did the employee bring his or her own clients to the company? Did he or she develop clientele from the Company’s contacts, and/or using its resources? Are clients likely to leave with the employee? Is he or she in a position of trust and confidence? 

Given the nuances involved, it Is highly recommended that you consult with a lawyer, whether you may be subject to a restrictive covenant or seeking to enforce such a clause.

- Simran Bakshi, Associate Lawyer Toronto

Visit our Ontario Employment Law Homepage

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday December 13, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Dec 13, 2016 at 6:35am PST

Can an employer lawfully terminate an exceptional employee who has had consistently good performance reviews?

Under Ontario law, an employer may terminate any employee without cause, so long as the employer provides reasonable notice, or pay instead of such notice, to the employee.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Top 10 Legal Headlines

Here are your Top 10 legal headlines from Wise Law on Twitter last week.

A video posted by Wise Law Office (@wiselaw) on Dec 12, 2016 at 8:03am PST

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

140Law: Legal Headlines for the week of December 12, 2016

Here are this week's leading legal news stories from Wise Law on Twitter

• 'I trusted them fully': B.C. man, 92, says of son and daughter who took his millions 

• Ban on expiry of loyalty points passes in Ontario - The Globe and Mail

• Poland's Supreme Court Rejects Roman Polanski Extradition Request

• Appeal in case of groping doctor puts spotlight on discipline system

• Edward Snowden — A Brave Young Man and a Heroic American

• Michigan recount halted by federal judge

• Belleville, Ontario woman helped cook up Pizzagate

• OHRT Challenges Infamous Family Status Test

• Under Trump, the Federal Courts Will Be Up For Grabs

• Lawsuit alleges Canada's military aggressively interrogated gay members from 1969 to 1995 | Toronto Star

• Social Media in Family Law Matters

• Powers of Attorney for Personal Care: Great Power with Great Responsibility

• Arkansas appeal court denies gay spouse right to be named on child's birth certificate

• Doctor who wrote 'misleading' insurance report under investigation - Toronto Star

• Quebec Algonquins file title claim to Ottawa lands including Parliament Hill, Supreme Court of Canada

• Human rights commission targets justice system in new 5-year plan

• NHL's Vegas Golden Knights denied trademark

• Report: Former councillor Doug Ford improperly used political influence to assist clients at city hall

• Hundreds of U.K. Police Officers Said to Have Sexually Abused Vulnerable People

• New Ontario child protection law will give kids a say

• Justice on a Floating Courtroom on the Amazon

• Law Clerk's Corner: 5 Things I have Learned as a Law Clerk

• Conway: Trump will do 'Apprentice' in his spare time

• Ontario court ruling says condo buildings can ban sharing services such as Airbnb

• Backpage wins court fight over pimping charges in case with implications for tech – Silicon Valley

• Mountie sues, alleges PTSD from exposure to child porn in sex offences unit

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

5 Things I have Learned as a Legal Assistant

BY LARA FRIEDMAN

Between finishing school, to being a Law Clerk Co-op Student, to now being a full-time employee at
Wise Law Office I have learned a multitude of tips that will help me as my career continues.

Here are 5 important tips that have helped me as a Legal Assistant.

1. Always Meet Deadlines By Planning Ahead

Meeting deadlines are a big part of being a Law Clerk. Deadlines in the legal field are very strict.  If you do not meet those due dates you and your client may be penalized. A few tips for organizing your deadlines and making sure you meet them are:

• Have a calendar and schedule in the due dates, reminders, and time to complete the tasks
• Have a check list on your desk or on your computer, it will feel good when you cross the task off the list
• Always check your to-do list or schedule way ahead of time, so that you are not rushing to get everything done on time

2. Interact with Clients on a Friendly Basis

Law Clerks and Legal Assistants have a lot of communication with the clients. You must be aware of the different personalities and different situations that can arise when you have these interactions.

Get to know your clients on a personal, but always professional level. Establish a good rapport.

The friendlier you are towards your clients, the more comfortable and responsive they will be.  That will always help them to help you and your firm build the strongest case possible.

3. Follow Up with Opposing Counsel

If you are expecting a document or response from an opposing counsel, make sure you always follow up when a specific amount of time has lapsed without the expected answer.

Remember, your client is counting on you and your firm to receive these documents and responses. Don't let deadlines pass without immediate follow-ups to the party you've been waiting on.

Be persistent.  And if you feel like you are annoying an opposing counsel who is late or not meeting set timelines, worry not.

You aren't being annoying! You are doing your job correctly.

4. Ask Early for Documents From Clients

After a client has officially retained your firm, your first step will often be to gather and organize as much key documentation as you can obtain from your client.

The earlier you get the required documentation, the better position you will be in when it comes to preparing an Affidavit of Documents, Documents Brief or Claim.

Ask early for all necessary documents, and you will always have the documents in time for deadlines ahead.

5. Update Your Clients Often

Updating clients in a very important part of our job. Keep this in mind:

• The more regularly a client is informed on what is happening in his or her case, the happier the client is rightfully going to be. 
• Ensure clients receive copies of all letters, emails and other communications received and prepared by your office in relation to the client's file or matter.
• Many of our clients will be new to legal matters, and they will truly benefit from explanations that give them plenty of notice as well as an in-depth explanation as to what is going to happen next and when.

Good things happen when legal assistants, law clerks and lawyers work together to ensure our clients are informed on where their cases stand - and where their cases are heading.

Help keep clients in the loop and good results will follow.

- Lara Friedman, Legal Assistant, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Powers of Attorney for Personal Care: Great Power with Great Responsibility

BY PAUL B. ADAM

A Power of Attorney for Personal Care is a document that sometimes gets referred to, or thought of,
as a "living will" or "advanced care directive".

Those names have been introduced into our everyday terminology by way of television and the internet, but neither capture exactly what a power of attorney for personal care is, or how much of an impact it can have on someone's life.

When most people think about a living will, or their advanced directives, they think about a documents that is used in the very final stage of a person's life. This is partly due to the obvious analogy between a "Living Will" and a "Last Will." A Power of Attorney for Personal Care can be these things, but it can be much, much more.

A Power of Attorney for Personal Care is a document that is a creation of Ontario legislation, the Substitute Decisions Act. Among other things, it allows the "attorney" (the person acting on behalf of another) to determine a huge range of questions relating to medical treatment and personal welfare for the "grantor" (the person who made and signed the power of attorney for personal care in her own name), such as where the grantor will live, what level of medical treatment the grantor will receive, how and when the grantor will see her family.

Through advancements in medical science, nutrition and a better understanding of mental illness, most Ontarians are living a lot longer.

Some of us may regrettably go through a phase in life when we are no longer mentally capable of caring for all our needs by ourselves, but with the right supports, we can live stable, happy, relatively healthy lives.

Doing all of that, however, costs money and requires far-reaching decisions to be made. For many people, the person or people making the decisions will be the attorney (or attorneys) for personal care.

The decision of what to do in the final phase of a person's life can affect the grantor for a few days, weeks or months. This is especially if the primary concern is whether a dying person should be kept on artificial life-extending measures such as mechanical respiration, or allowed to pass more quickly, and with less pain. For choices like this, it can be appropriate and preferable to leave the decision to a family member like a spouse, who may be quite elderly, but who has known the grantor best and longest.

But the decision of where a grantor should reside over a long period of time- perhaps decades, and the type and quality of care the grantor should receive is something with huge financial and emotional repercussions for an entire family. A grantor with dementia, or multiple sclerosis, who is otherwise stable, may need years of attentive and very costly medical care. The grantor may also need personal care, mental stimulation and specialized treatments that will not be attended to unless the attorney sees to it personally.

The job of an attorney under these very difficult circumstances may require numeracy, an understanding of geriatric or psychiatric care (or both), energy and above all, time commitment.

The person who is best suited to do this may be very different from the person who ought to be carrying out end of life decisions under a "simple will."

It is therefore important to choose your nominated attorney under a POA for Care, with all of life's medical contingencies carefully considered, and with input from medical, care-giving, financial and legal professionals as may be appropriate.

- Paul B. Adam, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Wills and Estates

Here is your daily LawFact from Wise Law for Thursday December 8, 2016. Today we are talking about Wills and Estates.

A video posted by Wise Law Office (@wiselaw) on Dec 8, 2016 at 7:19am PST

In Ontario, you may complete a Power of Attorney for Personal Care to appoint one or more trusted persons to make medical decisions on your behalf in critical circumstances where you are unable to provide medical direction or informed consent on your own.

In your Power of Attorney for Personal Care, you may also indicate whether you wish extraordinary measures to be taken to resuscitate you or to extend your life in the event of a critical, terminally illness where there is no prospect of your recovery.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday December 7, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on Dec 7, 2016 at 6:27am PST

The property rights of common law spouses upon separation are not governed by any Ontario statute.

Common law spouses may still advance family property claims, especially where property has been acquired in a “joint family venture,” or they have contributed to the acquisition, maintenance or improvement of property owned by a common law spouse.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Social Media in Family Law Matters

BY SIMRAN BAKSHI and RACHEL SPENCE

How much is it worth to bash your spouse on social media? 

These days, the cost could be more than you might think.

Canadian Courts have seen the use of social media as evidence in family law proceedings increase dramatically in the past few years.

• Westhaver v. Howard, 2007 NSSC 357, the Nova Scotia Supreme Court (Family Division) considered crude and homophobic comments posted by a father on social media and found those comments to be evidence of the father's poor judgment, ultimately denying the father access to the child;
• M(MJ) v. D(A), 2008 ABPC 379, the Alberta Provincial Court dismissed a father's application for guardianship of his child and ordered modest access, relying in part on the fact that the father had "demonstrated and displayed publicly (at least to his some 95 'friends' on his Facebook page) his disregard and callous lack of consideration of the mother" and that the father had simultaneously posted photos of the child online, thereby linking "the child to his rancour... and, despite her young age, also exposed her to adult-appropriate matters";
• W(JWA) v. B(A), 2008 NBQB 157, the New Brunswick Court of Queen's Bench (Family Division) admitted into evidence photographs found online that showed the mother dancing at a bar, drinking alcohol and smoking marijuana. This formed part of the basis for finding that it was in the child's best interest to reside primarily with the father; and
• Byram v. Byram, 2011 NBQB 80, the New Brunswick Court of Queen's Bench (Family Division) considered the vilifying comments made online by the father about the mother in granting the mother sole custody. 

How to Protect Yourself

While most of this may be common sense, this may nonetheless be a beneficial reminder:

• Never post / tweet anything about or in relation to your ex online that is negative or alludes to negative feelings about him or her;
• Do not post anything in relation to any extracurricular / adult activities you may be involved in, or anything that could be misconstrued ie.: partying, alcohol, drugs;
• Use your privacy settings and make your social media private;
• Do a thorough sweep of your “friends” on social media and delete/block anyone who may have the potential to create drama in relation to your family law matter.
• Do not post/tweet anything that you would  not want a judge to read and,
• For those who have a very hard time controlling themselves in moments of volatility, we suggest deleting your social media completely or limiting it.

Collecting Evidence

You cannot deceitfully or illegally collect evidence from a spouse’s social media page. Put simply, you cannot hack his or her Pinterest or Facebook pages or make a fake account, get accepted as a friend and collect evidence. 

However, if one of your former partner's legitimate online friends shares posts with you that relate to your ex, you likely may use them if they pass the legal test of relevance.

In many cases your ex’s online presence may confirm things are not as you have been told. For example, a former partner who: 

• Posts about a job while claiming in Court documents to be unemployed 
• Posted photos of luxurious vacations while claiming to have no assets
• Posts pictures or video disclosing inappropriate behaviour around the children, 
• Posts rants about you, or rudely alludes to you or your character or your parenting skills.

If you suspect that your ex or someone close to him or her may be posting something like this online, it is in your best interest to do a thorough but lawful inspection of his or her online presence and maintain diligent records and screenshots to provide to your lawyer.

Now that you’ve taken the time to read this, consider the following for a moment.

What you have to gain by posting anything negative in relation to your ex online?  

The answer is:  Nothing.  

It will not assist you legally in any way and could instead, potentially harm your case.

So don't do it.

If you are involved or could become involved in any family law dispute, have fun online but...

Always practice safe social (media).

- Simran Bakshi, Lawyer & Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday December 6, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Dec 6, 2016 at 6:40am PST

An employee who has been temporarily “laid off” may be entitled to treat the layoff as a permanent termination and claim notice and severance payments and other compensation.

Temporary layoffs may not be permitted unless there is employment contract that specifically allows for such layoffs. Seek legal advice to determine your rights and entitlements if you have been “laid off.”

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Top Ten Legal Headlines

Here are our top 10 legal headlines from last week.

A video posted by Wise Law Office (@wiselaw) on Dec 5, 2016 at 7:43am PST

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

140Law: Legal Headlines for the week of December 5, 2016

Here are this week's leading legal news stories from Wise Law on Twitter

• 960 Canadian soldiers report being sexually assaulted over past year

• Enforceability of Employment Agreements: Termination Clauses in Ontario

• Recognizing Foreign Divorces in Canada

• Ontario to tackle court delays by hiring more judges, prosecutors

• 26% of Law Firms Have Blogs; Percentage Unchanged for Four Years

• Last Wills that Offend Public Decency

• Controversial judge should go, committee says

• After 35 years and 4 murder trials, Robert Badgerow found guilty of Hamilton murde

• Lawyer crusades against accessibility problems caused by inadequate laws - Toronto Star

• Starting a professional practice? Why you may want to consult with a Lawyer

• Ontario lawyers to combat systemic racism in profession - CBC.ca

• Philly city attorney accused in anti-Trump graffiti incident remains on the job, for now

• Justice Malcolm Rowe is welcomed to the Supreme Court of Canada - CBC.ca

• Parents file human rights complaint against York school board

• German court rejects bias claims in Auschwitz medic trial

• Texas will require aborted fetuses to be buried or cremated

• Reviewing Prostitution Laws Since Canada v. Bedford

• Lawyer: Facing murder charges, Jimmy 'Superfly' Snuka in hospice, has six months to live - Toronto Sun

• Toronto lawyers Diamond & Diamond under fire - Toronto Star

• Grappling with the institutional dimensions of Trinity Western University’s religious freedom claim

• UK bill requiring firms to store Web histories becomes law - Times Union

• Trudeau urges police to ‘enforce the law’ on marijuana

• Senior with dementia guilty in death of nursing home resident

• Class-action lawsuit launched over sexual misconduct in Armed Forces

• Favourite Songs about the Law

• Fake News Onslaught Targets Pizzeria as Nest of Child-Trafficking

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Starting a professional practice? Why you may want to consult with a Lawyer

BY SIMRAN BAKSHI, ASSOCIATE LAWYER 

Anyone who has ever taken the leap to start their own professional practice will tell you of the many restless nights they have had contemplating the various, potential legal disasters their future professional practices could run into.

Having personally advised my family and clients through the trials and tribulations of starting and operating their own chiropractic clinics, dental clinics, architectural firms, brokerage firms and other professional practices, I know just how important it is to feel informed about the legal requirements of your professional sector, and the applicable law generally, before opening shop. 

Here is the good news - if you are feeling a bit overwhelmed and anxious, you are probably on the right track. 

It is actually very important to go through the checklist of "what could go wrong", in order to make sure you have it right. This is a time when your lawyer can become your best friend, and the key to having a good night's rest.

Here are some ways in which a lawyer can help.

Legally structuring your practice to meet your objectives

Make sure your practice is structured in a way that makes the most sense for you, both from the perspective of minimizing liability and realizing maximum profitability.

There are various ways in which your business can be structured, ranging from a sole proprietorship or partnership to a limited liability corporation. Sometimes, it can also be advantageous to consider incorporating a management company to operate certain aspects of your practice.

It is important to keep in mind that each ownership structure has its own advantages and disadvantages. Consulting with a lawyer (and an accountant) early on can ensure that your practice is legally structured in a way that actually reflects your underlying concerns and objectives. 

Creating proper and enforceable employment documentation

The key to any successful professional practice is having the right people in place. It is of course a long and often trying process to put together a team of staff, associates and other practitioners or professionals who are just the right fit for your professional practice.

As you put together your dream team, and build towards your professional empire, hiring employees and sometimes, making changes, will quickly become a reality of life.

It is accordingly so important that you ensure that your practice has the right building blocks with respect to is employment documentation, including employment contracts and contracts with any independent contractors and subcontractors, as well as confidentiality, non-disclosure and non-solicitation agreements. In some circumstances, particularly where a practice is being purchased from another practitioner, clear non-competition agreements may be necessary to protect your financial and professional interests.

A lawyer can help by ensuring that you are equipped with these necessary agreements, contracts, employment agreements, handbooks and a suite of employment-related templates that will be valid and enforceable, to protect your business in the long run.

Interpreting the laws and regulations applicable to your professional practice

Professionals are guided and overseen by their professional bodies, and are subject to various rules and regulations that change over time.

A lawyer can provide you with a regulatory map to help you navigate your professional practice.

For example:

• Are you permitted to accept or to provide referral fees in your profession? 
• Can you accept family members as clients or patients? 
• What confidentiality provisions, if any, are you subject to? 

If you find yourself asking such questions, you can take proactive measures by seeking a legal assistance as to the laws and regulations applicable to your professional sector, and how best to avoid common pitfalls.

Troubleshooting and Dealing with Issues Proactively

Once you are up and running, legal advice is sometimes needed urgently:

• You have a continuing issue with an employee or former employee 
• A workplace-related complaint has been made by one of your employees against another
• A supplier has not come through and you now have suffered losses
• A problem has emerged with one of your investments 
• Your building has been damaged and your landlord won't fix it
• A legal claim or dispute arisies
• You have serious accounts receivables and certain clients or patients who promise, but never pay
• You are considering a new opportunity and want to discuss your options.

Any number of day-to-day concerns can arise in any business or professional practice. At many such junctures, picking up the phone and speaking to your lawyers can make a world of difference and help you to ensure you are on an optimal and protected legal path.

Take a moment to think about the most successful practitioners and professionals you have come across.  What they often have in common is a willingness to access other professionals who understand their business needs and can provide practical guidance regarding their profession's regulatory requirements.

Your lawyers, among other professionals, can work with you as a partner to plan for and achieve the goals of your business, while limiting risk and ensuring you are compliant with the requirements of your regulators.

- Simran Bakshi, Associate Law, Toronto

Visit our Toronto Law Office website: www.wiselaw.net