Given the recent COVID-19 crisis which has caused significant upheaval for many families across the world, many parents may be considering the impact of COVID-19 on their ability to travel or relocate with their child. Relocating or travelling with a child following the breakdown of a relationship is a commonly contested issue as any relocation by one party may make access or visitation with the child difficult. The relocation may be due to a new job, moving closer to family following the separation, moving to a new school or simply for a change of scenery; regardless of the reason, parties should be aware of their rights, and the other parents rights, to move their child or children out of the province or to another country. The leading Supreme Court of Canada case on this issue is Gordon v. Goertz, which developed a two-fold test to determine whether the move should … Read More
Cyberbullying in Family Law
Cyber-bullying is a growing concern in family law litigation. Some provinces already have legislation to deal with such issues. While Ontario currently does not, in recent years Ontario courts have recognized new common law remedies to address these issues. In Yenovkian v. Gulian, 2019 ONSC 7279, Justice Kristjanson of the Ontario Superior Court of Justice recognized the act of publicly placing a person in a false light as a new cause of action under the tort of invasion of privacy. Yenovkian involved an extremely acrimonious separation and custody dispute involving two children, one of whom has special needs. Shortly after separating in 2016, the Respondent, Ms. Gulian, took the parties children to England and refused to return to Ontario. The Applicant, Mr. Yenovkian, engaged in a cyberbullying campaign spanning several years against his estranged wife. This campaign included videotaping court-ordered access visits with the children, without the children’s knowledge and … Read More
Contract Arbitrator – Event Cancellation Dispute Arbitrator, Force Majeure Clause Dispute – Reasonable Fees and Good Availability – Gilbertson Davis LLP Arbitration and Mediation Chambers
Contract Dispute Arbitrator Sole Arbitrator – $450.00 per hour, plus HST An arbitrator, or an arbitration tribunal, obtains jurisdiction to adjudicate and decide a dispute from an agreement / contract which has been made by the parties to the arbitration. This jurisdiction is not typically provided by legislation, though there are exceptions, such as the arbitration provision deemed by statute to be included in a condominium declaration. Even if there is no arbitration clause in the contract or agreement made by the parties and a dispute arises, then parties to that contract may still agree to have their dispute determined by arbitration. The parties to a contract may prefer to have a dispute determined by arbitration, since it is presumptively a confidential process, it may be faster and less expensive than going to court, or they may wish to participate in the selection of the adjudicator. Common Contractual Issues Arbitrated … Read More
Measures of Last Resort – The Benefits of Exit Provisions in Shareholder’s Agreements
The benefits of a shareholder’s agreement may not be fully considered when parties are intending to go into business together and become joint shareholders in a corporation. Perhaps the mood is optimistic and none of the participants anticipate that things might sour between them down the road. Sometimes corporations are formed absent such an agreement. However, among other benefits, these agreements become particularly useful in managing risk and guiding shareholders through governance issues and disputes that may arise, efficiently so as to minimize disruption to the corporation’s business. Absent a shareholder’s agreement, shareholders in a closely held corporation that cannot see eye-to-eye regarding the operation and path of the corporation, may become stuck in a deadlock where decision-making is effectively stifled due to a stalemate between them. Shareholder’s agreements can serve to provide mechanisms to address deadlock, protect the voice and rights of minority shareholders, provide a road map for … Read More
When Shareholders Need an Auditor or Inspector
I address here in a general way the procedures available for a shareholder or group of shareholders seeking the assistance of the court to have an auditor or inspector appointed. Financial Statements – None or Inaccurate Shareholders in closely-held Ontario corporations sometimes have concerns about the accuracy of the financial statements when the company does not have an auditor. Oppressive or Unfairly Prejudicial Conduct In other cases, a shareholder in an Ontario corporation may consider that the corporation has been carried on, or the powers of the directors are, or have been, exercised, in a manner that is oppressive or unfairly prejudicial to, or that unfairly disregards, the interests of the shareholder. Corporation and Fraud One or more shareholders may have concerns that the corporation’s business is, or has been, carried on with the intent to defraud, that the corporation was formed or dissolved for a fraudulent or unlawful purpose, … Read More
Legal Consequences of COVID-19 / Coronavirus on Commercial Contracts
Impact of COVID-19 / Coronovirus Events on International and Domestic Commercial Contracts The reports from China show that COVID-19 / Coronavirus not only has a tragic impact on the lives of very many, but has already caused the consequential events of closure of manufacturing, halting exports and affecting transportation operations. This can be caused by forced movement of labour, government-ordered closure and / or state sanction and embargo, or the business decision to cease production. Interruption of Supply, Outsourcing and Transportation of Goods This often has serious consequences for Canadian companies dependent upon foreign supply, outsourcing of manufacturing and the international carriage of goods. The central question is often whether or not the performance of a supply, outsourcing or transportation contract is legally suspended or excused because of the events surrounding the spread of COVID-19 / Coronavirus. Frustration | Impossibility International trade and transportation contracts may not expressly refer to … Read More
Six Ways to Get an Annulment in Ontario
Civil annulments are uncommon in Ontario as most separating spouses in Ontario choose to get a divorce. Annulments deem a marriage invalid, rendering the marriage null and void, as if it never happened. Essentially, an annulment means your marriage never occurred in the eyes of the law. Annulments are granted under a few specific grounds: 1. One of the spouses does not have the capacity to marry or could not consent to the marriage. Section 7 of Ontario’s Marriage Act states no one shall issue a licence to or solemnize the marriage of any person who lacks the mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason. Predatory marriages, where a financially motivated person marries an elderly person to gain access to and control over their property, assets and estate, can fall under this category if the victim … Read More
Hurdles To Recognition and Enforcement Of Foreign Judgments
In the recent Ontario Court of Appeal decision of H.M.B. Holdings Limited v. Antigua and Barbuda, 2020 ONCA 12, the Court of Appeal rendered a split (2-1) decision regarding the recognition of a foreign judgment which muddies the waters on the analysis to be applied to s.3(b) of the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 (REJA) Original Judgment: In this case H.M.B. Holdings Limited (HMB) was successful in obtaining judgment on February 26, 2014, against Antigua and Barbuda from the Judicial Committee of the Privy Council (the JCPC), which is the highest court of appeal for certain British territories and Commonwealth countries including Antigua and Barbuda. The case related to damages sought by HMB due to the expropriation of resort lands by the Antiguan government. The case has garnered some media attention because of the manner in which the lands were expropriated. HMB then brought a common law … Read More
Judgment Against Anonymous Blogger – Service on Pseudonym
In the recent decision of the Ontario Superior Court of Justice, Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, (“Theralase Technologies Inc.”) the court granted judgment in libel against anonymous and unidentified bloggers. In his reasons, Justice Myers held that the court has jurisdiction to grant judgment against unidentified defendants, despite the fact that the plaintiffs and the court do not know the defendant’s name, for defamatory statements published on the internet, “where a form of service can reasonably be expected to bring court proceedings to the attention of an unidentified defendant at whom the litigation finger has been appropriately pointed…” While noting that nothing in the Rules of Civil Procedure anticipates final judgments being granted against unidentified defendants, because civil proceedings generally involve claims and judgments in personam (against a person), the court observed that there are many cases started with placeholder names like “John Doe” pending the identification of … Read More
Profit Not Required to Find Use of Trademark in Normal Course of Trade
The Federal Court of Appeal in Cosmetic Warriors Limited v. Riches, McKenzie & Herbert LLP, 2019 FCA 48, set aside the decision and allowed the appeal of the Federal Court judgment allowing an appeal from a decision of the Registrar of Trade-marks, made through her delegate, a hearing officer of the Trade-marks Opposition Board, that found that the trademark had been used in the “normal course of trade” within the meaning of subsection 4(1) of the Trademarks Act, RSC 1985, c T-13 ( the “Act”) and thus maintained the registration of a trade-mark in a proceeding challenging the registration for non-use under section 45 of the Act. In issue was the trade-mark “LUSH,” as registered for use in association with “[c]lothing, namely, t-shirts.” In its decision, the Federal Court of Appeal described that: “The T-shirts and tank tops bearing the LUSH trade-mark are sold by Lush Canada in limited quantities … Read More
Liability of Directors and Officers | Oppression Remedy | Shareholders Claims
The lawyers in our Business Dispute Practice Group have acted in Ontario and other jurisdictions for small, mid-sized and large corporations (incorporated in Ontario and in Canada), shareholders, directors, officers, and executives in corporate disputes and shareholder disputes. We have acted for clients in both oppression remedy action and derivative actions. Oppression Remedy The oppression remedy is a mechanism in the Ontario Business Corporations Act and the Canada Business Corporations Act to protect the interests of shareholders and stakeholders in a corporation against wrongful conduct. Whether the Ontario or Canada Act will apply depends on the jurisdiction in which the corporation was incorporated. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the acts of other shareholders, the board of directors or other affiliates of the corporation. The oppression remedy can be used to protect the interests of shareholders, directors, officers or creditors against the … Read More
UN Convention on Contracts for International Sale of Goods | Ontario’s International Sales Convention Act
Some international traders are still not aware that the UN Convention on Contracts for the International Sale of Goods is the law of Ontario, Canada, by virtue of the Ontario International Sales Conventions Act, RSO 1990, c I.10. The Convention Status Chart is located here. Pending entry of the United Nations Convention On Contracts for the International Sale of Goods into force in these jurisdictions should be noted*: DPR Korea on 01.04.2020 Guatemala on 01.01.2021 Lao PDR on 01.10.2020 Liechtenstein on 01.05.2020 *Authoritative information on the status of the treaties deposited with the Secretary-General of the United Nations, including historical status information, may be obtained by consulting the United Nations Treaty Collection. The UNCITRAL Secretariat also prepares yearly a document containing the Status of Conventions and Enactments of UNCITRAL Model Laws, which is available on the web page of the corresponding UNCITRAL Commission Session. Please read our archive of blog … Read More
The Matrimonial Home: What Happens Post Separation?
The matrimonial home is often viewed as sacred ground for divorcing couples and disputes commonly arise over the ownership and possession of the property. In Ontario, special status is given to the matrimonial home due to it often being the most valuable and sentimental asset that a couple or family possesses. What is a ‘matrimonial home’? Section 18 of the Ontario Family Law Act defines the matrimonial home: “every property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and their spouse as their family residence”. Can there be more than one ‘matrimonial home’? There can be more than one ‘matrimonial home’ as long as at the date of separation, all of the properties are “ordinarily occupied” by the spouses as the “family residence”. The residence(s) being claimed as the ‘matrimonial home’ must … Read More
Common Law Couple Entitlements
Common Law Couples A common law relationship is not defined universally in law. Federal and provincial legislation use differing criteria to define common law relationships. For example, Ontario’s Family Law Act, defines common law relationships as one where parties reside together for at least three years or where parties are in a relationship of some permanence and have a child. Whereas, under the Income Tax Act, a common law relationship is defined as one where parties are in a conjugal relationship and living together for at least twelve continuous months. When you reside as common law spouses you are ‘spouses’ for the purpose of Government programs or benefits, except for those specifically applicable to ‘married spouses’. There is no formal separation process which must be followed. Married Couples A married couple is a couple who have chosen to commit their lives together and have undertaken to legally bind their relationship. … Read More
Limitation Period Considerations in Derivative Proceedings
Under modern business corporation legislation, a claim for wrongdoing against a corporation can only be brought by the corporation itself, or by way of a derivative action for which leave from the court is required. In Ontario, there is a standard two-year limitation period that applies to the commencement of most lawsuits, including derivative claims on behalf of a corporation. When wrongs done to a corporation are alleged to have been done by a director or directors who exercise control and decision-making on behalf of the corporation, it is unlikely that those same directors will agree to commence a claim on behalf of the corporation for those wrongs. It is then up to other interested stakeholders, such as shareholders, to seek leave to commence a derivative claim on behalf of the corporation for the wrongs done to the corporation. Until the release of a 2015 Supreme Court of Canada ruling … Read More
Do I have to split an inheritance I’ve received in my divorce?
During a divorce, couples often argue over whether an inheritance received by one spouse is to be included in the assets and property to be divided. As a rule, inheritances or gifts received by one spouse are excluded from the property division calculation used when spouses separate and divorce. Be aware that the inheritance or gift must not be treated as matrimonial property or placed into a joint account, as this will create complex accounting issues in your joint finances which will be difficult to unravel to prove the ownership of the inheritance or gift. At the time of the divorce, the inheritance or gift must still be in existence, whether this is in the form of a physical object, or non-tangible property such as stocks and shares. Upon receipt of inheritance or a gift, unless a spouse wishes for it to form part of the matrimonial property, a spouse … Read More
2020 – Does the 20th year of marriage mean an indefinite spousal support obligation?
With 2020 now upon us, it seems appropriate to consider the impact of reaching your twenty-year anniversary and what impact this may have on your spousal support obligations. The Spousal Support Advisory Guidelines suggest that where spouses have been together for twenty years or more, the duration of spousal support should not end at a specified point, in essence rendering the obligation to be indefinite. However, the Courts will look at the particular circumstances of the spouses including the requirement to become self-sufficient, the standard of living that the spouse grew accustomed to throughout the marriage and the age and employment potential of the spouse claiming spousal support. In the recent case of Cowan v Cowan (2019) , the parties were married for 21.5 years. The wife was an anaesthesiologist and associate professor earning over $300,000 annually, and her husband who claimed spousal support was a teacher earning $92,000 per … Read More