Child Support in Canada - "Days do Not Equal Dollars"

Leonelli-Contino and Contino

The Supreme Court of Canada today issued an important ruling on the application of the "40% Rule," as set out in Section 9 of the Federal Child Support Guidelines. This provision requires the Courts to consider a number of factors in establishing child support requirements where custody of children is shared, and a child resides with the support payor at least 40% of the time.

Where residency time is less than 40%, the Guidelines provide that specified table amounts are payable, based solely on the payor's income, the province of the children's primary residence and the number of children in the family.

Many support payors, noting the increased costs of providing for such residency, have argued that their support should automatically be reduced if a child resides with them for 40% or more of the time. This has led to some interesting questions including how the 40% should be calculated - does it include sleep time or daytime when a child is at school and not in either parent's direct care?

The Court's ruling clarifies the approach to be taken in determining support requirements in shared custody cases.

The Court held that no automatic reduction of support flows from reaching the 40% threshold - rather, all financial circumstances of the family are to be taken into account by a Court bearing in mind the aim of the Guidelines to provide appropriate resources and an adequate living standard for children in each of their parents' homes.


See the excerpt below from CTV News:

CTV.ca News Staff

The Supreme Court of Canada has decided that 'days do not equal dollars' when it comes to child support.

In an 8-1 majority decision, the court decided that a divorced parent who spends more time with his or her children should not necessarily be able to automatically pay less child support.

The case involved two Ontario parents, Joseph Contino and Joanne Leonelli-Contino. They were married in 1982, had one son in 1986, separated in 1989 and were divorced in 1993. Under their separation agreement, the parents took joint custody of their son, Christopher. The boy lived primarily with Leonelli-Contino while the boy's father had access to him on alternate weekends and Thursday nights.

In 2000, when Contino's access was increased by more nights per month to accommodate his former wife's studies, an Ontario Family Court judge ruled Contino's child care payments should be reduced.

The judge decided the payments should be cut on the basis that Contino was caring for his son almost half the time.

That was later adjusted by further court decisions over the next five years, with Contino at one point paying a high of $688 a month and a low of $100 a month. Joanne disagreed with the decisions and took the case to the Supreme Court.

On Thursday, the Supreme Court decided that the family's entire financial context should be taken into account to ensure an adequate standard of living for both parental homes. "It is important to keep in mind the objectives of the [Federal Child Support] Guidelines, requiring a fair standard of support for the child and fair contributions from both parents," Justice Michel Bastarache wrote for the majority.

"Any attempt to apply strict formulae will fail to recognize the reality of various families.''

They decided a more reasonable support payment amount would be $500 a month.
Leonelli-Contino's lawyer, Deidre Smith, told Canada AM ahead of the decision that her client's position was that extra time with a child in itself should not be a reason to reduce support payments.

"If there had been a change in expenses, if he had assumed a larger portion of the child's hockey expenses or if he was now having to go out and get a bigger home to accommodate his child because his child was now spending more time, if he was doing more of the transportation, paying more of the school expenses -- then those types of things would make sense as to why there would be a change in the support arrangements," she explained.

"But in our thinking, time in and of itself shouldn't be a reason to change around the finances."

Smith said she was worried that if the courts decided that "days equal dollars," some parents would try to exploit the idea simply to reduce their payments.

"Moms are going to be suspicious if Dad is asking for extra time and the only reason he's asking for it is to reduce his support," she noted. She worried that that kind of thinking would not take into account about that amount of parenting would be best for the child.

Following the decision, Smith said she hopes the decision will help clarify the sometimes confusing Federal Child Support Guidelines. "It's an important case because it helps Canadians understand how to interpret the child-support guidelines," she said. "This issue has been bedevilling Canadians, judges and lawyers . . . across the country.

- Garry J. Wise, Toronto

Visit our website: www.wiselaw.net/family.html

Where Were the Buses?

In the immediate wake of the crisis that has been unfolding this week in the "Big Easy," focus needs to remain on helping the victims. Canadians can donate to the Canadian Red Cross online or by telephone at 1-800-418-1111. All major Banks will also be accepting donations as of September 6th.

Nonetheless, I'm still trying to figure out why those same convoys of buses, sent to rescue thousands of stranded refugees after Katrina, weren't dispatched before this deluge to stop this human tragedy, before it ever started.

It's not like we didn't have a pretty good idea of what was coming. Even CNN was onto that.

An estimated 1 million people evacuated New Orleans and surrounding areas as Hurricane Katrina approached the Gulf Coast Sunday. New Orleans Mayor Ray Nagin said 75 percent to 80 percent of residents had been evacuated by Sunday evening. Some 30,000 people were taken to the Louisiana Superdome, reported CNN.

"We are in lockdown mode now," Nagin said on WWL-AM.

Walter S. Maestri, director of the Jefferson Parish Department of Emergency Management, estimated 1 million people had been evacuated. Approximately 1.3 million people live in the New Orleans metro area.

On Sunday evening, the hurricane was about 130 miles south of the mouth of the Mississippi River and expected to hit land early Monday. Conditions were already beginning to deteriorate along portions of the central and northeastern Gulf Coast.

Max Mayfield, director of the National Hurricane Center, told CNN Katrina is the strongest hurricane he has ever seen. "Not just because of the intensity but the size of this and the area that it`s hitting," he said.

Mayfield said there is a lot of attention on the threat Katrina poses to New Orleans, but western Mississippi is also going to get hit hard. New Orleans lies below sea level, separated from the Mississippi by huge levees.

I'll have more to say about Katrina in future days. But to give you an idea where I am heading, read a bit of this from Alan Eisner of Reuters News:

Virtually everything that has happened in New Orleans since Hurricane Katrina struck was predicted by experts and in computer models, so emergency management specialists wonder why authorities were so unprepared.

"The scenario of a major hurricane hitting New Orleans was well anticipated, predicted and drilled around," said Clare Rubin, an emergency management consultant who also teaches at the Institute for Crisis, Disaster, and Risk Management at George Washington University.

Computer models developed at Louisiana State University and other institutions made detailed projections of what would happen if water flowed over the levees protecting the city or if they failed.

In July 2004, more than 40 federal, state, local and volunteer organizations practiced this very scenario in a five-day simulation code-named "Hurricane Pam," where they had to deal with an imaginary storm that destroyed over half a million buildings in New Orleans and forced the evacuation of a million residents.

At the end of the exercise Ron Castleman, regional director for the Federal Emergency Management Agency declared, "We made great progress this week in our preparedness efforts.

"Disaster response teams developed action plans in critical areas such as search and rescue, medical care, sheltering, temporary housing, school restoration and debris management. These plans are essential for quick response to a hurricane but will also help in other emergencies," he said.

In light of that, said disaster expert Bill Waugh of Georgia State University, "It's inexplicable how unprepared for the flooding they were." He said a slow decline over several years in funding for emergency management was partly to blame.

In comments on Thursday, President George W. Bush' said, "I don't think anybody anticipated the breach of the levees."

But Louisiana State University engineer Joseph Suhayda and others have warned for years that defenses could fail. In 2002, the New Orleans Times Picayune published a five-part series on "The Big One" examining what might happen if they did.

Also on my mind is this hard-hitting story, posted August 31, 2005, at Editor And Publisher:

Even though Hurricane Katrina has moved well north of the city, the waters may still keep rising in New Orleans. That's because Lake Pontchartrain continues to pour through a two-block-long break in the main levee, near the city's 17th Street Canal.

With much of the Crescent City some 10 feet below sea level, the rising tide may not stop until it's level with the massive lake.New Orleans had long known it was highly vulnerable to flooding and a direct hit from a hurricane.

In fact, the federal government has been working with state and local officials in the region since the late 1960s on major hurricane and flood relief efforts. When flooding from a massive rainstorm in May 1995 killed six people, Congress authorized the Southeast Louisiana Urban Flood Control Project, or SELA.

Over the next 10 years, the Army Corps of Engineers, tasked with carrying out SELA, spent $430 million on shoring up levees and building pumping stations, with $50 million in local aid. But at least $250 million in crucial projects remained, even as hurricane activity in the Atlantic Basin increased dramatically and the levees surrounding New Orleans continued to subside. Yet after 2003, the flow of federal dollars toward SELA dropped to a trickle.

The Corps never tried to hide the fact that the spending pressures of the war in Iraq, as well as homeland security -- coming at the same time as federal tax cuts -- was the reason for the strain.

At least nine articles in the Times-Picayune from 2004 and 2005 specifically cite the cost of Iraq as a reason for the lack of hurricane- and flood-control dollars.

Newhouse News Service, in an article posted late Tuesday night at The Times-Picayune Web site, reported: "No one can say they didn't see it coming. ... Now in the wake of one of the worst storms ever, serious questions are being asked about the lack of preparation."

In early 2004, as the cost of the conflict in Iraq soared, President Bush proposed spending less than 20 percent of what the Corps said was needed for Lake Pontchartrain, according to a Feb. 16, 2004, article, in New Orleans CityBusiness.

On June 8, 2004, Walter Maestri, emergency management chief for Jefferson Parish, Louisiana; told the Times-Picayune: "It appears that the money has been moved in the president's budget to handle homeland security and the war in Iraq, and I suppose that's the price we pay. Nobody locally is happy that the levees can't be finished, and we are doing everything we can to make the case that this is a security issue for us."

Also that June, with the 2004 hurricane season starting, the Corps' project manager Al Naomi went before a local agency, the East Jefferson Levee Authority, and essentially begged for $2 million for urgent work that Washington was now unable to pay for. From the June 18, 2004 Times-Picayune:

"The system is in great shape, but the levees are sinking. Everything is sinking, and if we don't get the money fast enough to raise them, then we can't stay ahead of the settlement," he said. "The problem that we have isn't that the levee is low, but that the federal funds have dried up so that we can't raise them."

Garry J. Wise

Visit our Website: www.wiselaw.net

B.C. Supreme Court tosses traditional definition of adultery

In this new era of same-sex marriage and same-sex divorce, Canadian family law is, of necessity, undergoing a fudamental re-thinking.

The case below, excerpted from CTV.ca, highlights just one of many new challenges to our most basic (but now, patently anachronistic) family law principles.

In short, the traditiional definition of adultery, as extra-marital sexual relations between a spouse and a person of the opposite sex, is no longer applicable (in B.C., anyways). No doubt, courts in Ontario and the rest of the country will follow.

(We'll be arguing this same issue in a same-sex divorce proceeding in Toronto shortly. We'll keep you posted):

A B.C. Supreme Court judge granted a Vancouver woman a divorce Tuesday after deciding that the woman's husband had indeed engaged in adultery when he had sex with another man. The traditional definition of adultery is voluntary sex between a spouse and someone of the opposite gender, to whom he or she isn't married.

But Justice Nicole Garson of the B.C. Supreme Court said Tuesday that she had been persuaded to make a change in the traditional definition of adultery. The woman, who can be identified only as Ms. P due to a court order, was challenging Canada's divorce legislation after Garson earlier ruled that her husband's extramarital affair with a man didn't legally count as adultery.

The woman had been married nearly 17 years when, last October, she discovered her husband was having an affair with a younger man. She and her husband separated immediately and she filed for divorce two months later, seeking an immediate end to their marriage. Her husband signed an affidavit on Jan. 5, 2005, acknowledging his adulterous relationship, and didn't appear in court in February to contest the divorce.

Canada's Divorce Act allows for a no-fault divorce after a one-year separation, on grounds of marital breakdown. It also allows for an immediate divorce if there is admitted or proven adultery or cruelty. But Garson refused to grant an immediate divorce -- because the definition of adultery in common law didn't include homosexual relations.

"I was completely devastated and I felt like I didn't matter," Ms. P told CTV's Canada AM. The judge told the woman last Friday that she would hear the case again if a lawyer could argue why the legal definition of adultery should be broadened to include same-sex adultery. The woman's lawyer, barbara findlay (who spells her name in lower-case letters), argued that the traditional definition of adultery is as outdated as the original common-law definition of marriage, which was based on procreation.

"We argued, and the federal government agreed with us, that the court can make what is called in law an incremental change in light of current circumstances," said findlay, "so that divorce will, from now on, be understood to be available where there is, for example, intimate genital contact between two people, one of whom is married."

Garson's decision is expected to have far-reaching consequences across Canada, said findlay, because of the increasing number of same-sex marriages that will inevitably lead to same-sex affairs. She added that, because adultery isn't defined through federal legislation, judges hearing similar cases in other provinces will likely be persuaded by the B.C. judge's decision. "I would expect that other judges faced with the same question would rule in the same way," findlay told CTV....

The woman has also launched a constitutional challenge based on the Charter, saying the definition of adultery discriminates against gay and lesbian couples because it makes divorce less accessible to them compared to homosexuals.

- Garry J. Wise, Toronto

Visit our website: www.wiselaw.net/family.html

Teen Burgers and Floats

This from my friend Michael Fata - he loves the last paragraph...

Lotto dispute heads to B.C. Supreme Court
(from CTV.ca News Staff)

A disputed $14.5-million lottery win will be divided up by a B.C.Supreme Court judge, says the B.C. Lottery Corp.

"We were informed by the various legal counsels representing the winners that they were unable to resolve their dispute," Jim Lightbody, theCrown corporation's operations vice-president, said Tuesday.

Nine workers at an A&W restaurant in Mission, B.C. initially claimed to be the winners.

However, co-workers Tanis McQuillan and Meagan Weisgerber came forwardto say they had been part of the group's lottery pool because they hadpreviously paid in -- although not during the time the winning ticket was sold, according to the nine.

Two more co-workers over the weekend came forward with claims on the earnings after that. The corporation wanted an answer by Monday, but extended that until Tuesday at the request of the group of nine.

But the various sides weren't able to resolve the issue amongst themselves. Lightbody said the money will earn interest while the case is heard through the courts.

"What a court is going to look at as a legal question is: What was the intention of these A&W employees when they entered that lottery poll?"Legal analyst Steven Skurka said, appearing on CTV's Canada AM.

"For example, what happened in the past when one of the employees missed a payment and there was a losing ticket? Did that employee still make the contribution?

"That's really going to be the crucial question here."

The feud was featured in a lead editorial in The Vancouver Provincenewspaper, which urged the nine workers to let the other two contested members have a share so that lawyers don't take their cut in a court battle.

Lightbody said the dispute has reminded the many Canadians involved inworkplace pools to write down who is in their pool.

If the matter does end up court, he said it would be the first such legal battle in the corporation's history.

Meanwhile, back at the restaurant, the combatants continue to work side by side.

"I have no comment about the lottery okay?" A&W manager Francis Carcasson told CTV News. "We're just here doing what we do, looking after our customers, serving teen burgers and floats."

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Looking for America

It seems not that long ago that I was one of tens of thousand of Torontonians, rhythmically throwing our fists in the air with Bruce Springsteen as we shouted "Born in the USA, I was.... Born in the USA," out in the open air at the old CNE Grandstand. We were Canadians, of course, and always will be, but on those two, magical summer nights twenty years ago this weekend, borders were nowhere near our minds.

"We liked the same music, we liked the same bands, we liked the same clothes..."

In 1988, I took my first long road trip through the American Heartland, on drought-stained highways that wound through the Midwest cornfields to Tennessee and beyond.

In Memphis, there was Graceland, of course, and Beale Street where the avenue was actually equipped with electrical outlets, so the blues players could plug in their amps outdoors.

And onward.

The Grand Ol' Opry in Nashville. Little Rock (where I almost met Governor Bill Clinton). Bourbon Street, the Grassy Knoll, the Canadarm at NASA in Houston. I even saw a taping of the PTL Club - after Jim and Tammy Bakker's fall - in Charlotte, because it was there and so was I.

Northbound. The White House, Washington Monument, and Lincoln Memorial. Side trip to Asbury Park, N.J. And then, Wall Street. Times Square. The Statue of Liberty. Broadway, Madison Square Gardens. The Lincoln Tunnel.

The World Trade Centre.

These places were American icons. But they were, in some not-so-remote ways, ours too. They couldn't help but be.

I've had many feelings about what has happened in America since September 11 (which, as an aside, is also my birthday - I turned on CNN that morning to the shocking sight of the first tower burning, just as the unknowing birthday calls were beginning).

I've generally been somewhat centre-liberal, politically speaking, so I probably would always have had a visceral reaction against the deceptive rationales for the War in Iraq, the excesses of the Schiavo fiasco, the rise of the neocons and theocons, and the distorted, wedge politics of Karl Rove, Rush Limbaugh and Bill O'Reilly.

While I will always take intellectual issue with those sorts of right wing ideologues, I worry much more deeply that the growing estrangement between Canadian and American values is taking us toward the sunset of our crucial continental friendship with the USA.

Aside from the politics, it is kind of sad. I just don't recognize our old friend any more.

In Ambulance Blues, an obscure Neil Young dirge about the fabled Riverboat Cafe on Yorkville, North Toronto Collegiate's most famous musical alumnus tells us,

"There ain't nothin' like a friend
who can tell you you're just pissing in the wind."

(Sometimes I think I know what that line means).

Well, America, you are just pissing in the wind. And you're getting a tiny bit wet.

I have long believed that America's current eccentricities stem from a generalized, national post-traumatic stress reaction to 9-11.

I think the cloud, perhaps, may be finally beginning to lift.

Recent polls show President Bush's approval ratings falling as low as 36%. Perhaps this may signify a return to greater American moderation before the 2006 mid-term elections - Republicans like to win more than they like ideology.

Canadian political leaders, though, are starting to take this all quite seriously.

Still, I'm thinking Lloyd Axworthy's recent Toronto Star column, previously cited by blogger Cathie from Canada, goes a a bit too far.

Mr. Axworthy, Canada's former Foreign Affairs Minister, really pulls no punches:

"...The reality is that we are dealing with an American political system currently steeped in the ideology of "empire..." While most Canadians responded with dismay to the U.S. invasion of Iraq, few could quite grasp that the same cavalier, imperial attitudes exemplified in Washington's rejection of various agreements on disarmament, its fierce opposition to the International Criminal Court, its indifference to climate-change warnings, and its undermining of the U.N. would prevail in our continental relationship as well...

Let's face it: This is a painful and uncertain time in our relations with the United States... It's time for new policies and tough action to shift our trade and security strategies away from a preoccupation with continental matters to a more global footing....

Let's begin by seriously considering an end to NAFTA... The emergence of new economic powers like China, India, Brazil and South Africa provides markets hungry for the resources and know-how that Canada possesses. Our NAFTA connection impedes our ability to take advantage of this potential. It's time to redefine this historic relationship....

Mr. Axworthy is a highly respected, former Canadian cabinet minister who has a lengthy and entirely dignified record. That he is advocating this radical policy direction is newsworthy, in and of itself.

Hopefully, we haven't come to this point, yet. This is a critical continental relationship. It can be, should be, and in my view, must be repaired.

If all else fails, 2008 isn't that long from now....

- Garry J. Wise

Visit our Website: www.wiselaw.net

Red, White and Balloon

My good friend, Dr. Lawrie Ingles, forwarded this by email..

Red, White and Balloon

A woman in a hot air balloon realized she was lost. She lowered her altitude and spotted a man in a boat below. She shouted to him, "Excuse me, can you help me? I promised a friend I would meet him an hour ago, but I don't know where I am."

The man consulted his portable GPS and replied, "You're 30 feet above sea level. You are at 31 degrees, 14.97 minutes north latitude and 100 degrees, 49.09 minutes west longitude."

She rolled her eyes and said, "You must be a Democrat."

"I am," replied the man. "How did you know?"

"Well," answered the balloonist, "everything you told me is technically correct, but I have no idea what to do with your information, and I'm still lost. Frankly, you've not been much help to me."

The man smiled and responded, "You must be a Republican."

"I am," replied the balloonist. "How did you know?"

"Well," said the man, "you don't know where you are or where you're going. You've risen to where you are, due to a large quantity of hot air. You made a promise that you have no idea how to keep, then you expect me to solve your problem. You're in exactly the same position you were in before we met but, somehow, now it's my fault."

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Canada's new Spousal Support Guideline Proposal

Family Courts in Toronto and Ontario Reference New Spousal Support Guidelines

A new Federal Government proposal calls for a radical change in the way Canadian Spousal Support awards are to be determined. This proposal is already having immediate impact in family law courts in Toronto and the rest of Ontario.

The Spousal Support Advisory Guidelines Proposal, released in January 2005, attempts to bring much-needed predictability and certainty to the Courts' determination of spousal support entitlement, quantum and duration.

Two different formulas are suggested - one for families with dependent children, and a different approach for those without dependent children, as will be explained below.

Guidelines are advisory - not mandatory

Currently, the proposed Guidelines are not mandatory, and represent an approach which the Courts may choose to consider in exercising their existing discretion as to spousal support claims.


Families without Dependent Children

Under the Guideline proposal, where there are no dependent children, spousal support is to be calculated at 1.5% to 2% per year of marriage of the difference between the parties' gross incomes to a maximum of 50% for marriages of 25 years duration or longer.

To determine what support, within this range, is appropriate and how long it is to be payable, Courts will consider a number of factors.

These include the duration of the marriage, whether it is appropriate to compensate a spouse for negative economic consequences from the marriage, the need for financial support, a spouse's contribution to the enhancement of the other spouse's earning potential, any illness or disability, any imbalance in responsibility for the family's debts, and legal obligations to support other dependents.

Spousal support is to be payable for .5 to 1 year of support for each year of marriage. Support to terminate at this cut-off date.

Support to be indefinite (no end date) for marriages over 20 years, or under the "Rule of 65," where the total of the recipient's age and the years of marriage exceed 65.

Families with Dependent Children

Where children continue to be supported after a separation, the starting-point for calculation is each spouse's individual's net disposal income (INDI), or the amount remaining after payment or receipt of child support, income taxes and other allowable deductions.

A support order is to be made which provides between 40% and 46% of the two parties' combined INDI to the recipient spouse.

To determine what support, within this range, is appropriate and how long it should be payable, Courts will consider a number of factors, including the duration of the marriage, decisions made within the family to meet the childrens' needs which affected the recipient's earnings and income-generating potential, the childrens' ages and needs, whether it is appropriate to compensate a spouse for negative economic consequences from the marriage, the need for financial support and the ability to pay support, the parties' standard of living prior to separation, a spouse's contribution to the enhancement of the other spouse's earning potential, any illness or disability, any imbalance in responsibility for the family's debts, and legal obligations to support other dependents.

For shorter marriages of under ten years, support will terminate, at latest, when the last child of the family completes high school.

For long-term marriages of 20 years duration or less, it is proposed that support be payable up to one year for each year of marriage, or until the last child of the family completes high school, whichever is longer.

Support is to be payable indefinitely for marriages over 20 years, or under the "Rule of 65," where the total of the recipient's age and the years of marriage exceed 65.

Summary

The proposed guidelines may represent a small step forward in regularizing spousal support awards ny Family Courts in in Toronto and throughout Canada, but certainly do not eliminate all uncertainty or the ongoing discretion of judges in deciding this issue.

Unlike the Child Support Guidelines, which provide a specific table amount for a child support Order based on the payor's income, number of children and Province of residence, the proposed spousal support changes will do little to provide complete predictability as to the amount of support to be paid and the duration of payment.

Having said that, the consistent application of a specified formula will, over time, probably reduce the disparity between court awards in similar circumstances, and narrow the guesswork currently involved in anticipating likely outcomes in Applications for spousal support.

Will Judges use the Guidelines? In Toronto and the Greater Toronto area, the Guidelines are now regularly referenced. Our office, as a matter of course, now prepares computer-generated Spousal Support Guideline calculations for all matters where spousal support is an issue.

Time will tell how far the influence of the Guidelines will spread in Family Law Courts, but if the Child Support Guideline experience of the mid 90's can provide any historical reference, our anticipation is that over time, Judges will increasingly clarify and adopt the overriding principles set out in the Guidelines.

In Toronto and Ontario, generally, the emerging trend in this direction is already clear.

- Garry J. Wise, Toronto

Visit our main Toronto Family Law Website section: www.wiselaw.net/family.html

Visit our Website: www.wiselaw.net

Constructive Dismissal - Case Update

Employee's position was not restored on return from stress leave. Ontario Court of Appeal grants ten months' salary in lieu of notice

In an interesting decision released March 31, 2005, the Ontario Court of Appeal at Toronto reversed a trial judgment and granted ten months' salary to a claimant whose duties as a customer service representative for a car dealership were not restored on her return from extended stress leave.

Instead of reinstating the employee to her original positiion, the employer, a Peterborough Ford dealership, offered her the same salary in a different position which did not involve contact with the public. The employer contended it no longer had an available customer service position for the returning employee.

For the Court, Chief Justice Roy McMurtry, stated as follows:

"Where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed. Since the employer has not formally dismissed the employee, this is referred to as “constructive dismissal”. By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is therefore terminating the contract. The employee can then treat the contract as resiliated for breach and can leave. In such circumstances, the employee is entitled to compensation in lieu of notice and, where appropriate, damages.

To reach the conclusion that an employee has been constructively dismissed, the court must therefore determine whether the changes imposed by the employer substantially altered the essential terms of the employee’s contract of employment.

[25] It is my conclusion that Blondeau was constructively dismissed. Holiday Ford unilaterally made a substantive alteration to the essential terms of Blondeau’s contract of employment when it did not return her to her former position as “service advisor” with the same rate of pay."

For complete text of this decision, see: Blondeau v. Holiday Ford: http://www.ontariocourts.on.ca/decisions/2005/march/C40981.htm

For more information on employment law and the law of constructive dismissal in Toronto and Ontario, see: www.wiselaw.net/employment.html



- Garry J. Wise, Toronto

Hello and welcome.

As an occasional contributor and frequent visitor to numerous politically oriented blogs from the USA, I have decided that the time has come for this distinctly Canadian voice to be heard in the blogosphere.

Legal updates, politics, the media - all are fair game. If you have a comment or legal question ... fire away.

And thus, without further fanfare or cacaphony....

Welcome to the Wise Law Blog.

Garry J. Wise

Visit our website at www.wiselaw.net