Lockyer + Hein LLP

Pension Division Question: How is the division of a pension treated in a matrimonial case?... Answer: As of January 1, 2012, there have been amendments to the Pension Benefits Act and the Family Law Act which allow for former spouses of plan members to receive an immediate payment of their share of the pension assets. This can be done either as a lump sum transfer or a division of monthly pension payments. In deciding whether a transfer of a lump sum from a pension will be granted, the courts have discretion and consider various factors outlined in subsection 10.1(4) of the Family LawAct. Harjyot Dhaliwal Contact Us Today! 905-452-7400 LHLAW.ca

Happy Valentines Day! From the Lockyer & Hein Team.

Did you know that campfires are prohibited in Alexander Stewart Provincial Park? There is one basic rule in Ontario Parks: Have respect and consideration for your fellow visitors and the park environment. The following table lists some of the more common laws enforced in provincial parks. Under the Provincial Parks and Conservation Reserves Act, 2006, the registered permit holder is responsible for the conduct of all campsite occupants and could be charged with an offence... based on the actions of the occupants of the registered campsite. These laws are enforced by provincial park wardens who have all the power and authority of a member of the Ontario Provincial Police within a provincial park. Many of the listed offences could result in eviction from a provincial park. Evicted visitors are prohibited from re-entering any provincial park for a period of 72 hours. Minimum fines listed below do not include court costs or victim fine surcharge. Let us know what you think, comment below. #lockyerhein #Ontariolaws #Lawfacts Contact Us Today! 905-452-7400 LHLAW.ca

Temporary layoffs are a go to for employers looking to downsize, cut down on costs or restructure. However temporary layoffs can be risky if this right is not set out in an employment contract. The Ontario Employment Standards Act, 2000 (ESA) allows employers to temporarily lay off employees, so long as the layoff lasts for no more than 13 weeks in any consecutive 20-week period. However, if a layoff extends for more than 13 weeks in any consecutive 20-week period, but las...ts less than 35 weeks in any consecutive 52-week period, the layoff will still be considered temporary in some exceptional cases. If the applicable time lines are exceeded, it is considered a termination, and is the termination date will be the first day of the layoff. Despite the right to temporarily lay off an employee under the ESA, where an employment contract does not provide for such a layoff, the Ontario courts have sided with laid off employees who claim to have been constructively dismissed. To mitigate the risk, employers should include a provision in each employment contract that reserves their right to temporarily lay off employees in accordance with the ESA, and provides that such a temporary layoff will not constitute constructive dismissal. Currently these timelines are amended by a special regulation to address COVID related layoffs. For more information, please contact our office for a free half hour consultation. Harjyot Dhaliwal Contact Us Today! 905-452-7400 LHLAW.ca

Continue to remain safe, from the Lockyer and Hein team. You have our continued support.

Hey it's Todd. one of the managing partners at Lockyer and Hein. Here is a Q&A video I did with my associate, Reshana Singh, and a real estate agent, Shelly Williamson, iPro Realty Ltd., Brokerage. Enjoy!

Here's a chat between Reshana Singh From Lockyer and Hein and Zainab Williams from Elleverity Wealth Management; regarding estate planning. Estate Planning is often considered a daunting task which can at times seem overwhelming. At Lockyer + Hein LLP, we are here to help guide you through the process and offer a holistic approach to drafting your Will, Power of Attorney for Property and Power of Attorney for Personal Care, while also being able to assist you in other Estate... related matters. If you have a family, own property/assets or want to be in control of how your estate is distributed and who becomes your substitute decision maker when you no longer can make your own decisions, there is no better time than now to book your free half hour Estate Planning consultation with us. I have had the pleasure of teaming up with Zainab Williams, founder of Elleverity Wealth Management (Elleverity Wealth) to discuss the value of having these documents in place in order to assist those managing your affairs during increasingly uncertain times. Please enjoy the webinar and feel free to contact us with any questions you may have. Our offices are located in Brampton, Georgetown and Caledon.

Common Law Notice... Did you know that you may be entitled to more notice pay than what is set out in the Ontario Employment Standards Act. If you have been terminated from your employment on a without cause basis, in Ontario, and you do not have an employment contract that sets out the amount of notice you are entitled to, you can ou can claim common law notice. All contracts of employment, in Ontario, have an implied term of common law notice. Therefore, if an employee doe...s not wish to pay an employee notice pursuant to common law, the employer has to contract out of the common law notice by inserting an enforceable termination clause in the employee’s original contract. An employer can place a termination clause in the employment contract which states that the employee is not entitled to common law notice and is only entitled to notice under the Employment Standards Act or some other amount that complies with the Employment Standards Act. However, if there is no enforceable termination clause, then, the employee is entitled to common law notice. Common law notice takes into account various different factors, such as age, position, length of service, etc., to determine the amount of notice the employee may be entitled to. If you have been terminated from your employment, contact the Lockyer + Hein LLP team. We can help you determine your rights and entitlements.

Q: I have a motion in family court coming up. How should I present my case? A: As a result of COVID-19, the Courts were closed to normal proceedings in mid-March. The Courts have, however, dealt with a number of urgent matters, and there have been a number of written decisions about those matters. During this unusual time, filing of court materials is done electronically, and hearings are heard via Zoom videoconferencing. With this format, the Court is especially inte...rested in maintaining efficiency and manageability. A consistent message communicated by the Court from the decisions we have seen is that court materials must (still) comply with the rules of the Court and evidence. Moreover, it is very important that materials filed are clear, concise, and relevant. The KISS principle certainly applies as Judges do not want to have to sift through volumes of information that is petty, irrelevant and scandalous they did not really like that before. Consider: What your case is about? What do you have to prove? And how can you make your points in an informative and efficient manner that does not wade into what has been referred to as inflammatory rhetoric that can sometimes permeate family law court filings. Keep it short, to the point, and take the high road whenever possible. Feel free to contact us with your additional questions.

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A recent case of ours... D.S. v. C.S.(T), 2020 CarswellNB 49 (Q.B.), discussed the issue of whether a parent can be imputed with an income for being underemployed years after a child support order is made. In this decision, the judge stated that if the Order or agreement does not expressly or implicitly require a spouse to take steps to increase their income, a party most likely will not be successful in having additional income imputed to him or year later on for being under...employed. The court considered the fact that the consent support order which was based on the mother’s actual income did not set out that the mother should be making an effort to increase or income or perhaps venture into a different career to make a higher income. Therefore, the issue of imputing the mother with an income years later was now not available to him as a variation proceeding. Essentially the court noted that there was not material change in circumstances and the mother’s earning power at a later date in not considered a material change unless this was set out in the Order or agreement. It is important to note that in order to preserve the right to argue that a spouse should/could be earning more than s/he is presently earning, the Order or agreement must confirm that a spouse's failure to take appropriate steps to increase his/her income will constitute a material change in circumstances, or provide that support will be reviewed de novo after a certain amount of time, or a certain milestone has passed The Lockyer + Hein LLP team can assist with matters involving issues of material change. Contact us for a free half hour consult.

We salute all front-liners! Hope you're having a great weekend. #lockyerandhein #frontlineworkers #coronavirus

Make sure you're staying healthy! This is the perfect time to grow. We are here for you and we are in full effect; Contact us if there is anything you want assistance with. #lockyerandhein

Happy mothers day to all mothers from us to you.

Working from home (with kids) Lockyer and Hein #wearehereforyou #yourlawfirm

Q: What impact does COVID-19 have on parenting children for separated parents? A: This is a very important question given the health concerns surrounding COVID-19 and the concerns about what’s most precious, your children. The courts have responded to a number of cases that have come before it on this very issue. The court has held that generally "there should be a presumption that existing parenting arrangements and schedules should continue", and that parents "should n...ot presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time". Instead, case-specific facts must be brought forward to support a request to change circumstances relating to children. Certainly, children are not to be exposed to unreasonable risk, but COVID-19 is not in and of itself a basis for changing or denying a parent’s time with his or her child. The court has affirmed that, even in this unprecedented time, "[t]he overriding principle of the child's best interests remains. Most, if not all of these matters have come before the court on an urgent basis, particularly as the courts are closed except to urgent or emergency matters. The courts have provided us with guidance in terms of what constitutes urgent in these special circumstances. See more

Todd Hein; a partner at Lockyer and Hein. We’re Here to Help. These are uncertain and unprecedented times. All of us at Lockyer + Hein LLP wish for the health and safety of our community and everyone outside of it as well. Our lawyers and staff remain available to answer questions and support the community. ......... During these difficult times, law and order must continue. While the courts are closed for most matters,... they remain available in urgent cases and have expanded their online capabilities. As an essential service, and a full service firm, Lockyer + Hein LLP is increasing its use of video-conferencing for things like consultations, mediations, real estate transactions and estate planning. We now have the ability to accommodate remote Will and POA signing as well all from a safe distance so that you do not have to venture out unnecessarily. We also remain available by telephone. In the event you need to attend our offices, we have protocols in place as recommended by the local health authorities. Be healthy and safe one and all.

Hope you're having a healthy and happy Easter! #lockyerandhein

Todd Hein; partner at @lockyerandhein wanted to wish you and your family well in these uncertain time's. Stay safe, healthy and take precautions. #lockyerandhein #bramptonlaw #georgetownlaw #caledonlaw

What is necessary to be successful on motion for Exclusive Possession of children in the time of Covid-19? Article by Ruchira Kulkarni: An order for exclusive possession of the matrimonial home is difficult to obtain in regular circumstances. With Covid-19, understandably many parents want to protect their children, their other family members or themselves from health risks that the other parent may be taking. However, that alone is not sufficient. Earlier this week, Justi...ce Doyle in Guerin v. Guerin made a without-prejudice and temporary order granting the Mother exclusive possession of the matrimonial home and contact by the children with the Father by electronic means after being satisfied that the mother met the onus set out in Ribeiro v. Wright 2020 ONSC 1829 (Ribeiro v. Wright). So what type of circumstances were in play and what evidence did the mother in Guerin v. Guerin have to provide to obtain such an order? First, the mother had severe health issues that made her particularly vulnerable to the pandemic including Systemic Lupus Ertyhematosus, heart issues, discoid lupus, Sjorgren’s syndrome, fibromyalgia, and asthma. The parties had also been living together in the matrimonial home since early March 2020 to be able to continue the parenting time in place since fall 2018 in light of the challenges presented by COVID-19, which made it imperative that the father take additional precautionary measures. Second, the mother provided specific evidence supporting her concerns including a doctor’s letter highlighting the heightened risk to her health, examples where the father had not been honest about his frequent excursions outside the home, where at least on one occasion he saw his partner, and evidence that the father was not adhering to the measures deemed necessary given the mother’s special health circumstances, such as washing his hands after returning from his outings. In contrast, the father did not provide sufficient details and evidence about his absences from the matrimonial home and there was no evidence from his partner that suggested that she was following social distancing protocols. Finally, the court also considered the fact that two of the parties’ children had asthma and that the father had alternative accommodations if a temporary and without prejudice order granting the mother with exclusive possession of the matrimonial home was made. As is evident in the court’s analysis for granting an order for exclusive possession, parties considering bringing such a motion should carefully consider if their circumstances and evidence meet the high level required by the courts. We at Lockyer + Hein LLP understand that each case is unique as such we encourage you to contact us so that we may be able to assist you with your family law matters in this challenging time. Please contact Ruchira Kulkarni at [email protected] for a consultation. See more

Article by Jamuna Balaram: Question: This week a lot of people have been asking about what constitutes an urgent Motion in a Family Law proceeding. We thought it would be helpful if we shared some of the recent decisions that have been decided since COVID-19 came into play. Answer: Judges have been consistent for the most part in applying the strictest of tests as to what constitutes an Urgent Motion. The Superior Court had released a statement earlier this month stati...Continue reading

Impact of Covid-19 on family law matters: It seems like the world has turned upside down in the past few weeks with Covid-19 spreading around the globe. This is an unprecedented situation that is difficult and stressful for everyone. The courts have reacted to the pandemic by suspending regular operations including adjourning all family law matters scheduled to be heard on or after Tuesday, March 17, 2020, only allowing urgent matters to proceed. See the Notice dated March... 18, 2020, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ Understandably there is confusion as to what urgent family matters will be heard by the courts. These are outlined in the Notice (see link above) and include: 1. urgent relief related to the safety of a child or parent (e.g. restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); 2. urgent issues related to the well-being of the child including essential medical decisions or issues related to wrongful removal or retention of a child; 3. dire issues related to the parties’ financial circumstances including the need for a non-depletion order; and 4. in child protection cases, all urgent and statutory mandated events including the initial hearing after the child has been brought to a place of safety, and any other urgent motions or hearings. While courts understand that there are competing concerns here, on one hand, there are government and public health directives urging people to practice social distancing and remain home, and on the other hand, compliance with existing court orders or parenting arrangements, they are reminding parents that they cannot use the pandemic to try and unilaterally change the court ordered or agreed upon parenting arrangements. A common scenario right now involves access parents refusing to return the child(ren) after March Break as had been agreed previously, or custodial parents looking to limit access as ordered or previously agreed to by both parties. In most scenarios, parents should follow existing orders or existing parenting arrangements in place with modifications to ensure that all COVID-19 precautions. See more