Separation and Summer Vacation

Elizabeth C. Mourao

It’s here – summer vacation! The highlight of summer for kids and parents is often a family vacation. For family law practitioners, however, summer vacation often results in a spike in litigation.

When clients are in the midst of separating, or are already separated or divorced, family vacations can be more complicated.

What helpful tips can family law practitioners pass on to clients to reduce conflict and litigation and ensure summer vacations live up to their potential?

• Plan ahead. How often do we have clients contacting our office at the end of June wishing to travel with their children in early July? It’s essential that clients coordinate summer vacation times well in advance of the summer months. It’s also essential that clients not make any travel plans until they have cleared the dates with the other parent, particularly in the absence of a separation agreement or court order.

• Make sure you have all necessary travel documents. If vacation plans involve travel outside of the country, clients need to make sure they have all the appropriate travel documents for their children. Absent a separation agreement or court order stating otherwise, the consent of both parents is needed to apply for a passport for a minor. Similarly, separation agreements or court orders normally require permission from the other parent for children to travel out of province or country: a notarized travel consent form.

• Share itineraries. Regardless of whether an itinerary is required or not, it’s a good idea to encourage clients to share travel plans with each other. This helps the parent at home feel more connected to the child who is gone. It’s also a good idea for safety reasons.

• Arrange for contact.  When clients travel with children during the summer months, contact with the parent not on the trip should be encouraged, especially so for young children. With technology being what it is, this is easier to do than ever before with cell phones, Face Time or Skype. Older children often take the reins when it comes to staying in touch, but may forget in the midst of the excitement; a few reminders are useful.

• Prepare the client for the time away. If children have not been away from your client for any extended period of time, that first summer vacation can be a difficult separation. It is important that your client encourage children to have fun while with the other parent. Similarly, if your client has not been away from the children for extended periods of time, the time apart during summer visitation can be difficult for the client. Clients should view this time as a great opportunity to do something for themselves.

Elizabeth C. Mourao is a lawyer at Ricketts, Harris LLP. Her practice is restricted to family law.

Hiring Summer Students and Interns

Patrick James and Robert Tarantino

For most of us, the summer season brings with it opportunities to travel and enjoy the great outdoors. For students, summer represents a valuable opportunity to gain employment experience. Hiring a summer student or intern can help many lawyers and firms accomplish what needs to get done, while allowing regular employees to take well-deserved breaks.

Treat Interns and Summer Students like Employees

While it is always tempting to try to get something for nothing, beware of bringing in any summer students or interns on an unpaid basis. Under the Employment Standards Act, 2000 (ESA), the general rule is that anyone doing work for an employer is considered an employee. 

There’s a narrow exception for trainees, but you would need to be able to show that your firm is receiving virtually no benefit from the trainee’s presence in the office. The purpose of the trainee exception is for vocational-school type training that is primarily for the benefit of the trainee, not the employer.

Things to consider when hiring summer students:

• Prepare a written employment letter or contract setting out clear expectations for the student’s work, and the benefits and compensation the student will be receiving.

• Adhere to the ESA requirements regarding breaks, hours of work, overtime pay, vacation pay, statutory holidays, layoffs, and terminations.

• Be sure to provide summer students and interns with a useful initial orientation and interesting law-related work during their job term to ensure they benefit in a fulsome way from the “law firm” experience.

• Typically, a summer student is hired for no more than three months, in which case termination pay and severance pay are not required.

• Beware that if you hire a summer student on a fixed-term contract, and you want to terminate that contract before the agreed-upon end date, you may be on the hook for unpaid wages for the balance of the contract term unless you’ve included a properly drafted termination provision.

• Review Rule 5 of the Law Society’s Rules of Professional Conduct which deals with a lawyer’s relationship with students, employees, and others.By-Law 7.1 deals with what types of tasks may be assigned to a non-lawyer.For law firms in the City of Toronto, the Law Society has published a procedure for summer student hiring.Consult lsuc.on.ca for further information.

• Be sure to treat your summer students well as they start their legal careers. From a marketing and reputational perspective, you will want former students and interns to speak highly about their experience working with you and your firm, for years to come.

Patrick James is a partner and Robert Tarantino is an associate with Pinto Wray James LLP in Toronto, where they practise primarily in the areas of employment and labour law, civil litigation, administrative law, human rights, and disability and benefits law

Municipal Requirements: Beg Forgiveness or Ask Permission?

Roberto Aburto

With summer fast approaching, home renovation enthusiasts are plotting out new pools and planning additions to their backyard decks. Balanced with these ambitions is the anticipation of satisfying hard work in the sun. However, home renovation enthusiasts must also consider compliance with municipal by-laws in their plans.

Dealing with municipalities’ licensing requirements and by-law restrictions can feel burdensome. Citizens bear the burden of ensuring that they comply with complex municipal requirements; that they complete the detailed applications and that they pay additional costs.

Understandably, many homeowners consider whether avoiding the hassle is simply worth the risk of non-compliance; they hedge their bets and proceed with projects without fulfilling municipal requirements. Often, these homeowners are shocked to discover the true cost of non-compliance.

• In Brampton v. Mair, 2011 ONCJ 3214, the defendants were charged with improperly parking a motor vehicle in the rear of their residence after receiving several warnings to cease this activity. The defendants brought a motion for non-suit cleverly arguing that a gravel-covered yard was “paved” within the meaning of the City’s zoning by-law. The Court, however, did not find this argument to be clever enough as it dismissed the motion. The prosecution proceeded with charges that permitted fines of up to $25,000.

• Stratford (City) v. Thomas, 2012 ONCJ 613 was an appeal of a sentence relating to a conviction of locating a dwelling unit in a building also containing an automotive use, contrary to City Zoning By-laws and the Planning Act. The defence (which was not successful) was that the uses of the property were legally non-conforming. While the fine amount on appeal was reduced to $4,000 (where the zoning applications would have totalled only $2,306), the municipality cited case law holding that if the conduct was flagrant, the penalty would be much greater in order to deter others.

The threat of municipal prosecution and fines (frequently up to $25,000 per count) is real. While one may not get caught avoiding municipal requirements, the risks for such non-compliance can be quite costly, not to mention a hassle that is far greater than filling in a few application forms.

Roberto Aburto is an associate in Gowlings' Waterloo Region office, practising in civil litigation, with a focus on commercial and municipal litigation.

Travel Safety – Be Prepared

Jamie K. Trimble

A vacation is one of the most planned and expensive things we do. Yet, while we choose our hotel, where we want to go, and which flights to take, and while we purchase cancellation insurance for our tickets, we tend to not plan for our safety.

When a client calls you announcing she is taking the kids to visit family in a remote place, what advice do you give? Consider the following:

Before you go:

• Health and Welfare What will OHIP cover? Will OHIP pay or reimburse? What other coverage do I have (credit cards, Blue Cross) and is it sufficient? Does it cover the kids, air ambulance? Does it pay the hospital or reimburse the policy holder? Credit cards offer travel health insurance but it is limited. Do you have enough cash or credit to purchase emergency services until the insurance reimburses?

• Vaccinations and Visas – Exotic places mean exotic diseases. Some destinations require certain vaccines, some of which have risks. Get a reference for a travel doctor (specialists in travel medications) to get advice on what vaccines are required or suggested, what diseases are prevalent at your destination, and what health precautions to take. Many countries require visas, often purchased at customs on arrival, often in US dollars. If your visa requirements are not met, you may be denied entry. Check the website of the destination. Check External Affairs' website.

• Forewarned is Forearmed – What are the dangers in the destination? Check Canada's travel advisory website at travel.gc.ca. The government of Canada recommends exercising caution when travelling in places where there is the risk of terrorist acts, kidnappings and incidents of crime targeting Westerners. The site also gives contact information in your destination, if there is an emergency.

• Leave a Trail – Leave a detailed itinerary with family or friends at home with full contact information. Leave a colour copy of your passport too. 

• Traveling with children - When travelling with children but leaving a spouse at home, many jurisdictions require that you carry a notarized authorization form from the non-travelling spouse.  See travel.gc.ca.

• Protect the Home – While you plan for your safety while away, make sure the home is safe. Check your insurer regarding your obligations under your insurance policy to maintain coverage while you are away. Have someone visit regularly or stay, and collect mail and papers. Put lights on timers. Leave a radio on. Have someone move the car from time to time. Maintain the look of activity in the house.

• Protect Your Credit Cards – Tell the credit card company when and where you are travelling so your card is not declined. Leave colour copies of your cards with your family at home.

Once you are there:

• Be Sensible - Listen to your mother. Don't walk alone at night. Don't go anywhere alone.  Don't carry too much cash.  Don't carry ALL your credit cards. Know where is safe and where is not.

• Protect Your Documents - Leave one credit card in the hotel room safe. Don't travel internally with your passport, birth certificate, driver's licence, SIN card, vaccination card, visa or other important documents, if you don't have to. Carry colour copies of these, and leave the original in the hotel room safe.

• Leave a Trail – Register with the Canadian Embassy when you arrive and leave your itinerary in the hotel or room safe.

A little extra preparation before you go, and a few simple precautions when you get there will help make for a better vacation.

Jamie K. Trimble is a partner with Hughes Amys LLP, practising civil litigation out of both their Toronto and Hamilton offices. He enjoys a broad practice with a focus on tort and insurance litigation.

Written with the assistance of Bryan Kravetz, one of Hughes Amys' able articling students.