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Toronto Law Blog

Marriage Counselling Records: Can they be Disclosed in Family Court?

The Ontario Superior Court of Justice dealt with the question of the disclosure of marriage counselling records in the recent case Raso v Di Egidio.

The parties in this case were dealing with issues regarding custody, access, child support and property. The matter had been set down for a five-day trial. Three weeks prior to trial, the wife brought a motion before the courts to compel production of notes and records made by the couple's psychologist during their past marriage counselling sessions. The wife claimed that the husband had made comments and exhibited behavior during counselling sessions which suggested that the couple would not be able to share joint custody effectively. The husband opposed the disclosure of the notes.

Litigation Privilege

In Webasto Product North America Inc. v. Shasta Equities Ltd. and Lorne Shandro, the court dealt with an issue of litigation privilege over disputed documents regarding a boat that was damaged by fire. The respondents, Shasta and Shandro, claimed litigation privilege over the disputed documents. The appellant, Webasto, filed a motion requesting production of all of the disputed documents.

Punitive Damages are Back in Town

As part of their claims in litigation parties may seek punitive damages for large amounts. In many cases, these damage claims represent a mere strategy of brinkmanship and are not seriously pursued.

In the estates context on present practice in Ontario, it is rare that punitive damages are even sought. I also cannot recall in recent memory a reported case in which they have been awarded. But I posit that things could change.

If all you have is debt, do you still need a Will?

Deciding whether you need to have a properly drafted Will requires you to first understand what happens if you don't have one. An individual who dies without a valid Will dies intestate. The Succession Law Reform Act (the "SLRA") is the law in Ontario which dictates who is to receive the assets (including money, real estate and other property) of an individual who dies without a valid Will. Before such distributions are made, the deceased's debts must be paid from the assets of the estate.

Accommodating Employees with Childcare Obligations: When has an Employer met their Duty?

A recent Federal Court of Appeal case, Canada (Attorney General) v Johnstone, sheds some light on an employer's duty to accommodate an employee's childcare needs.

Fiona Johnstone was employed by the Canada Border Services Agency ("CBSA") since 1998, where her husband was also employed. When Ms. Johnstone returned to work at Toronto's Pearson Airport following maternity leave she requested changes to her schedule, as she and her husband were on rotating work schedules and had trouble meeting their childcare needs.

Temperature Rising for Employers that Fail to Adequately Investigate Misconduct

The recent decision of the Ontario Court of Appeal in Boucher v. Wal-Mart Canada Corp. reinforces the need for employers to investigate workplace misconduct complaints seriously. Paying mere lip-service to harassment policies can result in awards of aggravated damages, punitive damages and/or damages for mental distress.

When are Parties Living Separate and Apart?

When parties separate, they often do not agree upon the date in which they began living separate and apart.  One party believes it was a certain date and the other believes it was a different date.  This date must be determined in order to resolve issues between the parties. 

Molodowich v. Penttinen is the leading case on determining whether parties are living separate and apart. Molodowich has been referred to in family law cases across Canada.

Molodowich lists the principles that a court will take into consideration when determining whether parties are cohabiting or not. These principles are also inquiries that counsel must answer in order to make a successful argument.

Lawyers as Estate Trustees - Now Even More Exposure

The author takes a particular interest in reported cases of lawyers acting as estate trustees in Ontario. The author has acted in this capacity and estate trustee during litigation on a number of occasions, particularly when sizable estates have gone awry and an alternative is sought to an institutional trustee.

Constructive Dismissal and the Duty to Mitigate

When is an employee required to accept an offer to return to work following dismissal? The Ontario Court of Appeal addressed this question in Farwell v. Citair, Inc.(General Coach Canada). The court held that an employee does not have a duty to mitigate by returning to work following dismissal unless the employer offers the other position to the dismissed employee after termination.

The court discussed three issues in this case: constructive dismissal, notice period, and mitigation. With regards to constructive dismissal, the appellant, Citair, Inc., was found to have wrongfully dismissed the respondent, Mr. Farwell, when he was demoted from Vice-President of Operation to Purchasing Manager. A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. The employee can then treat the contract as wrongfully terminated and resign. This situation gives rise to an employer's obligation to provide damages to compensate for reasonable notice.[1]

With regards to the notice period, the court upheld the trial judge's finding that Mr. Farwell was entitled to 24 months' notice, given his age, length of service as an employee and the character of his employment. Mr. Farwell was 58 years of age and had been employed for 38 years. He had a high level managerial position and had been very dedicated to the company.

Mitigation was the most contentious issue in this case. The appellant argued that Mr. Farwell had a duty to mitigate his damages and that he was obligated to accept the job offer of Purchasing Manager during the notice period. However, the court upheld the trial judge's decision that Mr. Farwell could not be obliged to mitigate by working in an atmosphere that would be embarrassing or humiliating for him.

Estates Litigants Face Cost Consequences for Poor Conduct

Considering unduly prolonging a court action and rejecting reasonable offers to settle? It could cost you. The Ontario Court of Appeal recently upheld the lower court's decision in Villa v. Villa, 2014 ONCA 2987. The parties to the case were brothers Enzo and Renzo Villa, whose mother had recently passed away. Enzo had held a Continuing Power of Attorney for her property prior to her death and brought an application for passing of the accounts and compensation for his services. Renzo opposed his brother receiving compensation, claiming Enzo had improperly handled his mother's property. The matter was set down to be heard by a judge.

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