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How minority shareholders in Ontario can use the Courts

By Amrita Mann

Minority shareholders in private Ontario companies are given substantial protection by the Ontario Business Corporations Act. In fact, one of the main purposes of the Act is to impose restrictions and limitations on private corporations and the people who control and govern them to protect minority shareholders and third parties. Let me briefly explain these provisions

The act provides the following protection to minority shareholders:

1. Section 106: Minority shareholders may requisition the court to call a shareholders’ meeting

  • The court may call for a meeting of shareholders of a corporation upon being formally requested to by a director or shareholder. It can do so when the corporation doesn’t call for such a meeting because it is impracticable.

2. Section 148: Minority shareholders can insist that a corporation have audited financial statements

  • Upon a formal request by a shareholder, the court may direct a corporation to get its financial records audited if the corporation had sought and received an exemption its shareholders to get its financial records audited.

3. Section 149(8): A minority shareholder may apply to the court to have an auditor appointed

  • If a corporation does not have an auditor, the court may, upon the application of a shareholder or the Director, appoint and fix the remuneration of an auditor to hold office until an auditor is appointed by the shareholders.

A corporation, shareholder or director may apply to the court to determine any controversy with respect to an election or appointment of a director or auditor of the corporation.

Upon an application, the court may make

  • (a) An order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute
  • (b) An order declaring the result of the disputed election or appointment
  • (c) An order requiring a new election or appointment and including directions for the management of the business and affairs of the corporation until a new election is held or appointment made
  • (d) An order determining the voting rights of shareholders and of persons claiming to own shares

5. Section 161(1): A minority shareholder may apply to court for an investigation

A security holder of a corporation may apply, with or without notice to the court for an order directing an investigation to be made of the corporation and any of its affiliates. The court may order an investigation if finds that

  • The corporation has been carried on with intent to defraud any person;
  • Its business or is being conducted in a manner that is oppressive or prejudicial to the interest of the security holder
  • It been formed for unlawful purpose or is being dissolved for an unlawful purpose;
  • Any person connected with the corporation’s formation acted fraudulently or dishonestly.

In addition to ordering an investigation, the court may also:

  • Appoint or replace an inspector and affix the remuneration;
  • Give notice to an interested person or dispense with such a notice;
  • Authorize an inspector to enter premises to examine and make copies of documents and records;
  • Order any person to produce documents or records;
  • Order an inspector to conduct hearing, administer and examine a person under oath, and prescribe rules of hearing;
  • Order a person to attend a hearing conducted by an inspector and give hearing;
  • Give directions to an inspector or any interested person on any matter arising in the investigation;
  • Order an inspector to make an interim or final report;
  • Determine whether a report should be made public;
  • Order discontinuing an investigation;
  • Order to pay the costs of the investigation.

6. Section 246, 247: A minority shareholder may take over litigation the corporation is not prosecuting, or defend a lawsuit the corporation is not defending

A complainant may seek the court’s intervention to initiate action on behalf of the corporation or intervene in an action involving the corporation to prosecute, defend, and discontinue any action on behalf of the corporation.

The court may consent to such an action if it is satisfied that

  • The directors of the corporation will not bring, diligently prosecute or defend or discontinue the action;
  • The complainant is acting in good faith; and
  • The action is in the corporation’s interest

The court may make an order

  • Authorizing the complainant or any other person to control the conduct of the action;
  • Giving directions for the conduct of the action;
  • Directing that any amount adjudged payable by a defendant in the action shall be paid directly to former and present security holders of the corporation or its subsidiary instead of to the corporation or its subsidiary
  • Requiring the corporation to pay reasonable legal fees and other costs by the complainant in connection with the action.

7. Section 207(1), (2), 208: A minority shareholder can apply for a court ordered winding up in certain circumstances, including unfair treatment at the hands of the majority

A corporation may be wound up by order of the court in the following circumstances

  • (a) Where the court is satisfied that in respect of the corporation any act by the corporation, any business or any powers of its directors are oppressive or unfairly prejudicial to a security holder
  • (b) Where the court is satisfied that a shareholder is entitled to demand the dissolution of the corporation following the occurrence of a specific event, and that winding up procedures have been launched against the corporation; the corporation has become insolvent, or there is another just and equitable reason for it to be wound-up
  • (c) Where the shareholders by special resolution authorize an application to be made to the court to wind up the corporation.

A winding-up order may be made upon the application of the corporation or of a shareholder or, where the corporation is being wound up voluntarily, of the liquidator or of a contributory or of a creditor having a claim of $2,500 or more.

Amrita Mann is a Partner at Simmons da Silva LLP

Email: amrita@sdslawfirm.com
Telephone: 905-861-2816

By Amrita Mann

Minority shareholders in private Ontario companies are given substantial protection by the Ontario Business Corporations Act. In fact, one of the main purposes of the Act is to impose restrictions and limitations on private corporations and the people who control and govern them to protect minority shareholders and third parties. Let me briefly explain these provisions

The act provides the following protection to minority shareholders:

1. Section 106: Minority shareholders may requisition the court to call a shareholders’ meeting

  • The court may call for a meeting of shareholders of a corporation upon being formally requested to by a director or shareholder. It can do so when the corporation doesn’t call for such a meeting because it is impracticable.

2. Section 148: Minority shareholders can insist that a corporation have audited financial statements

  • Upon a formal request by a shareholder, the court may direct a corporation to get its financial records audited if the corporation had sought and received an exemption its shareholders to get its financial records audited.

3. Section 149(8): A minority shareholder may apply to the court to have an auditor appointed

  • If a corporation does not have an auditor, the court may, upon the application of a shareholder or the Director, appoint and fix the remuneration of an auditor to hold office until an auditor is appointed by the shareholders.

A corporation, shareholder or director may apply to the court to determine any controversy with respect to an election or appointment of a director or auditor of the corporation.

Upon an application, the court may make

  • (a) An order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute
  • (b) An order declaring the result of the disputed election or appointment
  • (c) An order requiring a new election or appointment and including directions for the management of the business and affairs of the corporation until a new election is held or appointment made
  • (d) An order determining the voting rights of shareholders and of persons claiming to own shares

5. Section 161(1): A minority shareholder may apply to court for an investigation

A security holder of a corporation may apply, with or without notice to the court for an order directing an investigation to be made of the corporation and any of its affiliates. The court may order an investigation if finds that

  • The corporation has been carried on with intent to defraud any person;
  • Its business or is being conducted in a manner that is oppressive or prejudicial to the interest of the security holder
  • It been formed for unlawful purpose or is being dissolved for an unlawful purpose;
  • Any person connected with the corporation’s formation acted fraudulently or dishonestly.

In addition to ordering an investigation, the court may also:

  • Appoint or replace an inspector and affix the remuneration;
  • Give notice to an interested person or dispense with such a notice;
  • Authorize an inspector to enter premises to examine and make copies of documents and records;
  • Order any person to produce documents or records;
  • Order an inspector to conduct hearing, administer and examine a person under oath, and prescribe rules of hearing;
  • Order a person to attend a hearing conducted by an inspector and give hearing;
  • Give directions to an inspector or any interested person on any matter arising in the investigation;
  • Order an inspector to make an interim or final report;
  • Determine whether a report should be made public;
  • Order discontinuing an investigation;
  • Order to pay the costs of the investigation.

6. Section 246, 247: A minority shareholder may take over litigation the corporation is not prosecuting, or defend a lawsuit the corporation is not defending

A complainant may seek the court’s intervention to initiate action on behalf of the corporation or intervene in an action involving the corporation to prosecute, defend, and discontinue any action on behalf of the corporation.

The court may consent to such an action if it is satisfied that

  • The directors of the corporation will not bring, diligently prosecute or defend or discontinue the action;
  • The complainant is acting in good faith; and
  • The action is in the corporation’s interest

The court may make an order

  • Authorizing the complainant or any other person to control the conduct of the action;
  • Giving directions for the conduct of the action;
  • Directing that any amount adjudged payable by a defendant in the action shall be paid directly to former and present security holders of the corporation or its subsidiary instead of to the corporation or its subsidiary
  • Requiring the corporation to pay reasonable legal fees and other costs by the complainant in connection with the action.

7. Section 207(1), (2), 208: A minority shareholder can apply for a court ordered winding up in certain circumstances, including unfair treatment at the hands of the majority

A corporation may be wound up by order of the court in the following circumstances

  • (a) Where the court is satisfied that in respect of the corporation any act by the corporation, any business or any powers of its directors are oppressive or unfairly prejudicial to a security holder
  • (b) Where the court is satisfied that a shareholder is entitled to demand the dissolution of the corporation following the occurrence of a specific event, and that winding up procedures have been launched against the corporation; the corporation has become insolvent, or there is another just and equitable reason for it to be wound-up
  • (c) Where the shareholders by special resolution authorize an application to be made to the court to wind up the corporation.

A winding-up order may be made upon the application of the corporation or of a shareholder or, where the corporation is being wound up voluntarily, of the liquidator or of a contributory or of a creditor having a claim of $2,500 or more.

Amrita Mann is a Partner at Simmons da Silva LLP

Email: amrita@sdslawfirm.com
Telephone: 905-861-2816

Constructive role and relationship

By Noel da Silva

Cooperating with the Children’s Aid Society is the best course of action for relatives and the child, says Noel da Silva, in a brief analysis of the role of the agency

People have said in reference to almost any government agency that becomes involved in a legal matter, especially a court case, that they are the scary monster in the room. It is true that when you have the CRA, The Office of the Children’s lawyer, the Police, or the Public Trustee involved that the problems caused clearly complicate matters and escalate legal fees.

Consider however the opposite view.

I was recently asked a question about the Children’s Aid Society, where a grandparent was caring for their grandchild. The parent who had born the baby had a history of emotional, health and behavioural problems. The baby’s other natural parent had serious problems as well.

The problems of the parents came to the attention of the police. They in turn must have notified the Children’s Aid Society. It may have been another professional or agency that did so.

When the Children’s Aid Society intervened, they needed a place that was a safe haven for the child. They normally turn to the child’s family as the preferred resource for safe placement. The Society cannot after all, place all the children they are monitoring or trying to keep safe, in foster homes. There are not enough such approved homes and the Society does not have an unlimited budget.

What inevitably happens is that the family member, be it a grandparent, aunt or uncle, sister or brother, falls in love with the baby. It seems that human babies have the capacity to somehow make that happen. Is it built into our genes? I suspect so.

So the moral of the story is that when the Children’s Aid Society comes to rescue and protect a child that they as advocate for the child, become the protector of the relative actually caring for the child.

If and when they bring a court application and obtain an order placing the child in the relatives care the case for interim and permanent custody of the child with that relative becomes that much stronger. The longer the natural parent or parents continue to have problems the better the case for permanent custody by the relative becomes.

The takeaway is that cooperation with the Society, no matter how much their power scares you, may be the best course of action for the love struck relative and the child.

This blog was not sponsored by any government agency. It was not shown to nor was it approved by the workers of our local Children’s Aid Society.

Noel da Silva is a Partner at Simmons da Silva LLP

Email: noel@sdslawfirm.com
Telephone: 905-457-1660 ext 229

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

By Noel da Silva

Cooperating with the Children’s Aid Society is the best course of action for relatives and the child, says Noel da Silva, in a brief analysis of the role of the agency

People have said in reference to almost any government agency that becomes involved in a legal matter, especially a court case, that they are the scary monster in the room. It is true that when you have the CRA, The Office of the Children’s lawyer, the Police, or the Public Trustee involved that the problems caused clearly complicate matters and escalate legal fees.

Consider however the opposite view.

I was recently asked a question about the Children’s Aid Society, where a grandparent was caring for their grandchild. The parent who had born the baby had a history of emotional, health and behavioural problems. The baby’s other natural parent had serious problems as well.

The problems of the parents came to the attention of the police. They in turn must have notified the Children’s Aid Society. It may have been another professional or agency that did so.

When the Children’s Aid Society intervened, they needed a place that was a safe haven for the child. They normally turn to the child’s family as the preferred resource for safe placement. The Society cannot after all, place all the children they are monitoring or trying to keep safe, in foster homes. There are not enough such approved homes and the Society does not have an unlimited budget.

What inevitably happens is that the family member, be it a grandparent, aunt or uncle, sister or brother, falls in love with the baby. It seems that human babies have the capacity to somehow make that happen. Is it built into our genes? I suspect so.

So the moral of the story is that when the Children’s Aid Society comes to rescue and protect a child that they as advocate for the child, become the protector of the relative actually caring for the child.

If and when they bring a court application and obtain an order placing the child in the relatives care the case for interim and permanent custody of the child with that relative becomes that much stronger. The longer the natural parent or parents continue to have problems the better the case for permanent custody by the relative becomes.

The takeaway is that cooperation with the Society, no matter how much their power scares you, may be the best course of action for the love struck relative and the child.

This blog was not sponsored by any government agency. It was not shown to nor was it approved by the workers of our local Children’s Aid Society.

Noel da Silva is a Partner at Simmons da Silva LLP

Email: noel@sdslawfirm.com
Telephone: 905-457-1660 ext 229

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

Dealing with digital assets

By Howard Simmons

The use of the computer and sites is rapidly changing. We need to be sure our families do not suffer after we are not here, says Howard Simmons while discussing the need to plan for digital assets

David Reynolds is a proud grandfather and a keen photographer. He has taken many pictures of all his grandchildren and the rest of his family for many years. He keeps all his pictures (now several thousand) on his iCloud account. Unfortunately, David Reynolds now has Alzheimer’s. Where are all his pictures? They are there in cyberspace but no one else knows his passcode to access the pictures.

Barbara Lindsay pays all her bills online, she also gets all her financial information online, such as credit card statements, bank statements investments realty tax, utility and many other bills. The bank Barbara has no physical branches and conducts its business only online. Barbara also has a lot of Aeroplan and Air Miles points. Barbara also has an online brokerage account.

Barbara has now died. How is her family going to access all this information if they do not have her passcode?

These are only a few examples of digital assets. They may not have value in the outside world, but they have great value to the people involved. What if a novelist has the latest, almost finished novel on the computer but no one has the passcode? What about the bookkeeping records for a small business?

How many passwords and accounts do you have? Are there accounts you don’t care about but others you want looked after.

Planning for your mental incapacity or death can now involve more than a will and power of attorney. However, this digital planning is not always clear. Should you leave your passcodes with someone you trust? Should you leave them with your will that is with your lawyer?

There is also the separate problem of someone not wanting anyone to access his or her private e-mails. Is there an expectation of privacy for these e-mails? There are also social media sites such as Facebook. As people die or become mentally incapable, Facebook and other sites become dormant.

At some time, there will be more dead people on Facebook than alive people. Do you want your Facebook page to live on as a memorial or to be terminated?

The use of the computer and sites is rapidly changing. We need to be sure our families do not suffer after we are not here.

Howard Simmons is a Partner at Simmons da Silva LLP

Email: howard@sdslawfirm.com

Telephone: 905-457-1660 ext 245

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

By Howard Simmons

The use of the computer and sites is rapidly changing. We need to be sure our families do not suffer after we are not here, says Howard Simmons while discussing the need to plan for digital assets

David Reynolds is a proud grandfather and a keen photographer. He has taken many pictures of all his grandchildren and the rest of his family for many years. He keeps all his pictures (now several thousand) on his iCloud account. Unfortunately, David Reynolds now has Alzheimer’s. Where are all his pictures? They are there in cyberspace but no one else knows his passcode to access the pictures.

Barbara Lindsay pays all her bills online, she also gets all her financial information online, such as credit card statements, bank statements investments realty tax, utility and many other bills. The bank Barbara has no physical branches and conducts its business only online. Barbara also has a lot of Aeroplan and Air Miles points. Barbara also has an online brokerage account.

Barbara has now died. How is her family going to access all this information if they do not have her passcode?

These are only a few examples of digital assets. They may not have value in the outside world, but they have great value to the people involved. What if a novelist has the latest, almost finished novel on the computer but no one has the passcode? What about the bookkeeping records for a small business?

How many passwords and accounts do you have? Are there accounts you don’t care about but others you want looked after.

Planning for your mental incapacity or death can now involve more than a will and power of attorney. However, this digital planning is not always clear. Should you leave your passcodes with someone you trust? Should you leave them with your will that is with your lawyer?

There is also the separate problem of someone not wanting anyone to access his or her private e-mails. Is there an expectation of privacy for these e-mails? There are also social media sites such as Facebook. As people die or become mentally incapable, Facebook and other sites become dormant.

At some time, there will be more dead people on Facebook than alive people. Do you want your Facebook page to live on as a memorial or to be terminated?

The use of the computer and sites is rapidly changing. We need to be sure our families do not suffer after we are not here.

Howard Simmons is a Partner at Simmons da Silva LLP

Email: howard@sdslawfirm.com

Telephone: 905-457-1660 ext 245

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

A Princely Estate

By Howard Simmons

Prince died at age 58. He had a net worth when he died of $300 million (US).  Estates of this magnitude usually have sophisticated tax, will, trust and other planning. Prince had none. He even died without a will. Prince had no wife, no children (yet known) and both his parents were dead. He had one sister and five half siblings, so all six of them will share in the estate

Who will administer this large estate, plus all of Prince’s music library and existing future royalties?  The income flowing to Prince’s estate and still continuing will be huge. Expertise in the music business and being trustworthy are essential.

The court in Minnesota will end up making this decision, not Prince.  The amount of tax on his estate will be substantial, as there was no planning. You would think the very rich would plan their affairs well. Sometimes you will be wrong.

There are many other wealthy and famous who did not plan or make any or a proper will. Warren Burger was a Chief Justice of the United States Supreme Court. You would think he would do everything properly. You would be wrong. He wrote his own will in 176 words. When he died, his family paid more than $450,000 in taxes that could have been avoided with proper planning.

Sonny Bono, was a musician (along with Cher). He was a busy man. He was so busy, he never had done a will. He died unexpectedly in an accident while skiing. Although busy, he secretly fathered a child. On his death, this child claimed part of the estate.

We all plan better than people like Prince, Chief Justice Warren Burger and Sonny Bono.

Don’t we?

Howard S. Simmons is a partner at Simmons da Silva LLP.

The lawyers at Simmons da Silva are experienced in assisting clients in drafting Wills.  Should you require any assistance with such drafting, please contact Howard S. Simmons at: T: 905 8612826 or email: howard@sdslawfirm.com

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

By Howard Simmons

Prince died at age 58. He had a net worth when he died of $300 million (US).  Estates of this magnitude usually have sophisticated tax, will, trust and other planning. Prince had none. He even died without a will. Prince had no wife, no children (yet known) and both his parents were dead. He had one sister and five half siblings, so all six of them will share in the estate

Who will administer this large estate, plus all of Prince’s music library and existing future royalties?  The income flowing to Prince’s estate and still continuing will be huge. Expertise in the music business and being trustworthy are essential.

The court in Minnesota will end up making this decision, not Prince.  The amount of tax on his estate will be substantial, as there was no planning. You would think the very rich would plan their affairs well. Sometimes you will be wrong.

There are many other wealthy and famous who did not plan or make any or a proper will. Warren Burger was a Chief Justice of the United States Supreme Court. You would think he would do everything properly. You would be wrong. He wrote his own will in 176 words. When he died, his family paid more than $450,000 in taxes that could have been avoided with proper planning.

Sonny Bono, was a musician (along with Cher). He was a busy man. He was so busy, he never had done a will. He died unexpectedly in an accident while skiing. Although busy, he secretly fathered a child. On his death, this child claimed part of the estate.

We all plan better than people like Prince, Chief Justice Warren Burger and Sonny Bono.

Don’t we?

Howard S. Simmons is a partner at Simmons da Silva LLP.

The lawyers at Simmons da Silva are experienced in assisting clients in drafting Wills.  Should you require any assistance with such drafting, please contact Howard S. Simmons at: T: 905 8612826 or email: howard@sdslawfirm.com

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

‘Technology can’t solve all the problems of a broken relationship’

By Noel da Silva

From someone who does not use social media, a caution about it should be viewed with suspicion.  Despite that, here are some ordinary concerns, in the context of high conflict family law cases.

We all know that emails, texts and postings available to the public can come back to haunt you when they are reproduced and appear in an Affidavit. Yet to my surprise, even after an acrimonious separation, spouses continue to berate each other and in the next breath, complain about the other side’s disrespect, when they have actively engaged in the nastiness. They draw in family and friends as allies and spokespersons, thereby increasing the conflict.

We need to realize that the spouse has met and formed relationships with the other family and friends. Sites intended to be private and purporting to limit public access can still leak out to the other side. Treat private sites with care.

Lawyers and family health professionals normally caution their clients about this, yet the practice is so ingrained that clients have a hard time stopping. Just look at people walking by you on the street. Gaze in wonder when the person with their head down crossing the street while texting survives another crisis at the corner of walk and don’t walk. Worse, look at the drivers you pass doing the same thing at a higher speed. Yes it’s a societal crisis that is serious enough to attract shock TV ads. My point is proven, so I probably did not need to make it.

Getting clients to not blame the other parent, after an agreed Skype or phone appointment is not honoured, is difficult. Life happens and all sorts of events intervene to derail the schedule. Even when it does occur as scheduled, children with the attention span of an ant say hello, chat for 30 seconds and wander off to do what they really want to do. So having high expectations of social media to enhance a parent-child relationship can be unrealistic. While it can work well we need to be careful to not raise expectations. Technology cannot solve all the problems of a broken relationship.

What about the parent with a somewhat older tech savvy child, who uses the social media contact to undermine the other parent?

What about the non custodial parent who is concerned that their calls and contacts are being monitored or even scripted?

What about the child who routinely contacts the other parent to get a second, more favourable decision on what they want?

Yes, in a mobile society where the estranged spouse has to move away to find a job, “instant” contact can be a godsend.

Clearly clients and their helping professionals need to have a conversation about this whole area and the need for guidelines, scheduling, non confrontational language, sensitivity to the child’s other needs and the need for flexibility. Even bloggers need to beware.

Noel da Silva is a Partner at Simmons da Silva LLP
At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. ‎Please contact Noel da Silva or Justin Clark at our office to discuss how we can assist you in resolving your family law matter.

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

By Noel da Silva

From someone who does not use social media, a caution about it should be viewed with suspicion.  Despite that, here are some ordinary concerns, in the context of high conflict family law cases.

We all know that emails, texts and postings available to the public can come back to haunt you when they are reproduced and appear in an Affidavit. Yet to my surprise, even after an acrimonious separation, spouses continue to berate each other and in the next breath, complain about the other side’s disrespect, when they have actively engaged in the nastiness. They draw in family and friends as allies and spokespersons, thereby increasing the conflict.

We need to realize that the spouse has met and formed relationships with the other family and friends. Sites intended to be private and purporting to limit public access can still leak out to the other side. Treat private sites with care.

Lawyers and family health professionals normally caution their clients about this, yet the practice is so ingrained that clients have a hard time stopping. Just look at people walking by you on the street. Gaze in wonder when the person with their head down crossing the street while texting survives another crisis at the corner of walk and don’t walk. Worse, look at the drivers you pass doing the same thing at a higher speed. Yes it’s a societal crisis that is serious enough to attract shock TV ads. My point is proven, so I probably did not need to make it.

Getting clients to not blame the other parent, after an agreed Skype or phone appointment is not honoured, is difficult. Life happens and all sorts of events intervene to derail the schedule. Even when it does occur as scheduled, children with the attention span of an ant say hello, chat for 30 seconds and wander off to do what they really want to do. So having high expectations of social media to enhance a parent-child relationship can be unrealistic. While it can work well we need to be careful to not raise expectations. Technology cannot solve all the problems of a broken relationship.

What about the parent with a somewhat older tech savvy child, who uses the social media contact to undermine the other parent?

What about the non custodial parent who is concerned that their calls and contacts are being monitored or even scripted?

What about the child who routinely contacts the other parent to get a second, more favourable decision on what they want?

Yes, in a mobile society where the estranged spouse has to move away to find a job, “instant” contact can be a godsend.

Clearly clients and their helping professionals need to have a conversation about this whole area and the need for guidelines, scheduling, non confrontational language, sensitivity to the child’s other needs and the need for flexibility. Even bloggers need to beware.

Noel da Silva is a Partner at Simmons da Silva LLP
At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. ‎Please contact Noel da Silva or Justin Clark at our office to discuss how we can assist you in resolving your family law matter.

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

The criminal justice system and matrimonial disputes

By Ida Mirzadeh

The outcome of a criminal prosecution will have a significant, but not always determinative, impact on parallel family law proceedings relating to disputes over child custody and the matrimonial home. Below are three relevant factors that are often overlooked by spouses who are faced with a high-conflict separation.

3 THINGS TO CONSIDER BEFORE CALLING THE POLICE ON YOUR SPOUSE:

Zero Tolerance Policy:
It is important to understand that our government identifies domestic violence as a serious social concern. Accordingly, the police have been instructed that there be a zero tolerance policy toward domestic violence, such that upon receiving a complaint of domestic violence, the police are to exercise no discretion but to lay the appropriate criminal charge against the other spouse.

There are many situations where the complainant spouse has contacted the police in an effort to have the other spouse simply removed from the home, not expecting that the other spouse would be arrested and charged with a criminal offence.

The “No Contact” Order and Conditions of Bail:
Any conditions imposed by the criminal courts also must be followed in family court. If there is a “no contact” order imposed as a term of your release (“bail”) you must not attempt to contact your ex-spouse under any circumstances.

Specifically, your bail will be subject to conditions which will prohibit you from communicating or associating, directly or indirectly, with your spouse and possibly the children of the relationship. You will also be restrained from physically attending at the family residence where the alleged assault took place.

It is important at this stage for the non-association/communication release clause to include an exception to allow for your contact or communication through, at the very least, a third party or lawyer to arrange access to your children or pursuant to the terms of a Family Court Order or Separation Agreement. It is important to understand that the bail conditions, unless they contain these exceptions, supersede any existing or later family court orders for access or even custody. The bail conditions will remain in effect until likely the first court appearance for the charge, which may not take place until several months from the date of the laying of the charge. Accordingly, the terms of bail provide your spouse with informal custody and exclusive possession of the home while they exist.

Status Quo and the Best Interests of the Child:
Domestic violence will usually have an impact on the court’s determination as to who should be assigned primary care and custody of a child. Although this is only one factor in determining the best interests of the child, it is significant. The seriousness and frequency of the assaults, and the circumstances of the parties and of the child, all must be examined and balanced when considering the best interests of the child.

The first steps taken by the accused are crucial as a status quo may be inadvertently acquired, and this might determine the long term rights and obligations of family members.

Also, it is important to note that the resolution of an allegation of domestic violence in the criminal justice system does not mean that the family courts will not be required to grapple with issues of family violence.

Where a child’s welfare is at issue, courts tend to be cautious and demonstrate a preference for maintaining the status quo where it has proven beneficial to the child. Peace bonds, which include conditions that limit the ability of a parent to develop or maintain a normal relationship with his or her child or children, can also play a significant role in the establishment of a “status quo”.

Ida Mirzadeh is an Associate at Simmons da Silva LLP
At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. ‎Please contact our Family Law Practice Group to discuss how we can assist you in resolving your family law matter.

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

By Ida Mirzadeh

The outcome of a criminal prosecution will have a significant, but not always determinative, impact on parallel family law proceedings relating to disputes over child custody and the matrimonial home. Below are three relevant factors that are often overlooked by spouses who are faced with a high-conflict separation.

3 THINGS TO CONSIDER BEFORE CALLING THE POLICE ON YOUR SPOUSE:

Zero Tolerance Policy:
It is important to understand that our government identifies domestic violence as a serious social concern. Accordingly, the police have been instructed that there be a zero tolerance policy toward domestic violence, such that upon receiving a complaint of domestic violence, the police are to exercise no discretion but to lay the appropriate criminal charge against the other spouse.

There are many situations where the complainant spouse has contacted the police in an effort to have the other spouse simply removed from the home, not expecting that the other spouse would be arrested and charged with a criminal offence.

The “No Contact” Order and Conditions of Bail:
Any conditions imposed by the criminal courts also must be followed in family court. If there is a “no contact” order imposed as a term of your release (“bail”) you must not attempt to contact your ex-spouse under any circumstances.

Specifically, your bail will be subject to conditions which will prohibit you from communicating or associating, directly or indirectly, with your spouse and possibly the children of the relationship. You will also be restrained from physically attending at the family residence where the alleged assault took place.

It is important at this stage for the non-association/communication release clause to include an exception to allow for your contact or communication through, at the very least, a third party or lawyer to arrange access to your children or pursuant to the terms of a Family Court Order or Separation Agreement. It is important to understand that the bail conditions, unless they contain these exceptions, supersede any existing or later family court orders for access or even custody. The bail conditions will remain in effect until likely the first court appearance for the charge, which may not take place until several months from the date of the laying of the charge. Accordingly, the terms of bail provide your spouse with informal custody and exclusive possession of the home while they exist.

Status Quo and the Best Interests of the Child:
Domestic violence will usually have an impact on the court’s determination as to who should be assigned primary care and custody of a child. Although this is only one factor in determining the best interests of the child, it is significant. The seriousness and frequency of the assaults, and the circumstances of the parties and of the child, all must be examined and balanced when considering the best interests of the child.

The first steps taken by the accused are crucial as a status quo may be inadvertently acquired, and this might determine the long term rights and obligations of family members.

Also, it is important to note that the resolution of an allegation of domestic violence in the criminal justice system does not mean that the family courts will not be required to grapple with issues of family violence.

Where a child’s welfare is at issue, courts tend to be cautious and demonstrate a preference for maintaining the status quo where it has proven beneficial to the child. Peace bonds, which include conditions that limit the ability of a parent to develop or maintain a normal relationship with his or her child or children, can also play a significant role in the establishment of a “status quo”.

Ida Mirzadeh is an Associate at Simmons da Silva LLP
At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. ‎Please contact our Family Law Practice Group to discuss how we can assist you in resolving your family law matter.

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.