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Toronto Law Blog

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.


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.

CASL and Estates Law

Lately, with Canada's new anti-spam legislation being such a relevant topic, I find myself contemplating the different ways it can be interpreted and how it may impact me and others, both personally and professionally. This includes asking questions such as "could this text message qualify as a commercial electronic message?" and "would this person fall under the personal relationship exemption?"

Considering my practice is primarily focused on business law and estates law, it also includes taking a moment to consider how estates law is captured by the scope of the legislation.

CBC News Reports that the CRTC has been Flooded with more than 1,000 Anti-Spam Complaints

Looking for a reason to take Canada's Anti-Spam Legislation ("CASL") seriously? Well, look no further. According to an article published by CBC today, "[m]ore than 1,000 complaints have been filed since the new anti-spam law took effect on Tuesday, says Manon Bombardier, the CRTC's chief compliance and enforcement officer."

Estranged Spouse Inherits Father-in-law's Estate - Testamentary Freedom Upheld

In a recent decision, the Ontario Court of Appeal has confirmed that a competent testator may distribute his or her property under the terms of his or her Will as he or she sees fit, even if this means excluding independent, adult children of the testator.

CASL (Canada's Anti-Spam Legislation) Comes into Force Tomorrow

July 1, 2014. This date has been on many business owners' minds over the last months. Not because it marks a day off to celebrate Canada Day with friends and family, but because it is the day Canada's Anti-Spam Legislation ("CASL") comes into force, marking significant changes in the way electronic messages are sent.

Unreasonable Behaviour Can Lead to Hefty Costs Awards

The Superior Court of Justice demonstrated in Children's Aid Society of London and Middlesex v. B. (C.D.) that unfair behaviour in child protection proceedings does not go unpunished.

An award of $1,400,000 was made against the Children's Aid Society ("the Society") because it had acted unreasonably during the entire proceeding. Justice Harper found that the Society prematurely agreed to advocate for the mother's claim without doing a thorough and proper investigation of the issues.

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