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    • Month: June 2016

    What Marriage Contracts or Cohabitation Agreements Cannot Do

    A previous blog discussed the many benefits to having a marriage contract or cohabitation agreement. That blog described how couples can have certainty in their lives, if they are married through a marriage contract, or if they are living together through a cohabitation agreement. There are many ways that they can set up their lives to be better than they would be if the couples stayed under the provisions of the Family Law Act, or went to court to resolve the matters between them.

    However, the law prohibits marriage contracts from doing eight important things:

    • Marriage contracts cannot set parenting terms (address issues regarding custody or access). Judges always have the right to make the custody or access order that they feel is in the “best interest of a child”, regardless of an agreement between the parties. While the Family Law Act specifically allows marriage contracts and cohabitation agreements to address the educational and moral training of children, the Act also says that judges can override the contract if doing so is in “best interest of the child”.
    • A marriage contract or cohabitation agreement cannot restrict either married spouse’s right to be in a possession of a matrimonial home. On separation, married spouses have an equal right to stay in any matrimonial home, and there can be more than one. Marriage contracts cannot require one spouse to leave a matrimonial home. They also cannot authorize one spouse to sell, mortgage or otherwise encumber or dispose of a matrimonial home before the spouses are divorced or they have a separation agreement or court order addressing the issue. Only married spouses can have matrimonial homes, so this restriction does not apply to cohabitation agreements unless the parties marry with the agreement still in effect. (Note: A cohabitation agreement could create rights to a property that are same as matrimonial home rights for parties who are married.)
    • A marriage contract cannot opt parties out of the Child Support Guidelines unless the provisions benefit the child as much or more than the Child Support Guidelines. In any event, the court always has the right to make an order that is in accordance with the Child Support Guidelines if the judge does not like the terms of the agreement.
    • A marriage contract cannot require that the parties go to mediation or arbitration instead of court after separation. The Family Law Act only allows parties to agree to mediation or arbitration after the dispute between them has already arisen. The parties can say that they would like to maintain a good relationship and use a more amicable process than court after they separate, but those terms in the marriage contract are not binding on the parties.
    • Marriage contracts are not recognized under the Income Tax Act with regard to the treatment of support. Periodic spousal support paid during or after the marriage pursuant to the terms of a marriage contract or cohabitation agreement will not be deductible to the payer and taxable in the hands of the recipient. Unless the parties sign a separation agreement, or obtain a court order, confirming those terms. People who are living together cannot agree that one will pay support to the other to shift the tax burdens to the person who pays tax at the lower rate.
    • Marriage contracts cannot waive a spouse’s entitlement to receive disclosure before signing the contract or signing a separation agreement. The Family Law Act gives judges the power to set aside any marriage contract, cohabitation agreement, or separation agreement that was negotiated without the parties receiving full financial disclosure.
    • A marriage contract or a cohabitation agreement also cannot waive a spouse’s right to obtain independent legal advice on either the marriage contract, cohabitation agreement, or a subsequent separation agreement. Again, judges always have the power to set aside an agreement that one or both spouses did not understand. The best evidence that the spouses understood an agreement is for them to have had independent legal advice.
    • A marriage contract or a cohabitation agreement is also not enforceable in relation to circumstances that the parties did not contemplate at the time that they signed it. If the couple wants their marriage contract or cohabitation agreement to be enforceable no matter what circumstances happen in the future, it is important that the agreement state that they have contemplated all possible future happenings and have still decided that, no matter what happens, they wish to be bound by the marriage contract or a cohabitation agreement. (Ensuring that a marriage contract meets this requirement is one of the trickier aspects of marriage contracts and it is another reason why lawyers need to be involved in the creation of a marriage contract.)

    The above are some of the restrictions on the creation of marriage contracts or cohabitation agreements. As long as couples stay away from the above restrictions, they will likely have an agreement that the court will enforce that will give them some certainty with regard to their affairs after marriage breakdown.

    By Fauzan SiddiquiBlog, Family Law

    Workplace Accommodation Has Limits

    In Pourasadi v Bentley Leathers Inc., the Human Rights Tribunal found that accommodating a store manager by permitting the employee not to assist customers was not required, since assisting customers was an essential duty of her position.

    Many are familiar with the concept of an employer’s duty to accommodate disabled employees under Ontario’s Human Rights Code, but the grey area of accommodation in the workplace is about how much an employer is expected to accommodate. You might guess that the answer is to the “point of undue hardship” — and you would be right — but even this phrase can be confusing. If you work as a server at a restaurant, is the employer expected to accommodate you so you do not have to serve patrons? The Human Rights Tribunal (“Tribunal”) considered a similar scenario in its decision in Pourasadi v Bentley Leathers Inc.

    The Respondent-Employer (“Employer”) sells a variety of merchandise including purses, backpacks, totes, luggage and briefcases. The Applicant-Employee (“Employee”) began working for the Respondent in 2005 and became a store manager in 2006, working at the employer’s Promenade Mall location. In 2008, the Employee injured her right wrist while unpacking a box and was compensated for these injuries through a WSIB claim.  The Employee continued to work full time from August 2008 until November 2009, subject to her restrictions, and was provided with modified duties from November 2008 onward. The Employee underwent wrist surgery in November 2009 but her condition did not improve. She returned to work at the Promenade Mall store in April 2010 with various physical restrictions. A WSIB Functional Abilities Evaluation in July 2012 concluded that the store manager job was not suitable for the Employee because the position included tasks that she was restricted from performing and no further accommodations or modifications could be implemented.

    The Employer later dismissed the Employee after it learned the Employee had been turning customers away while she worked alone because of her physical limitations. The Employee filed an application under the Human Rights Code alleging discrimination on the basis of disability. The Employee argued that the Code required the Employer to schedule another employee to work with her, who could perform all tasks outside her abilities, or alternatively, that she should be allowed to turn away customers or ask them to come back when another employee was present. Her position was that aside from these limitations, her other work was still valuable to the Employer. Both parties conceded that roughly 65-70% of the Employee’s position involved sales and customer service, but disagreed about how often the Employee would turn away customers because of her disability. Further, the Employer argued that it was not required to provide an accommodation which would not require the employee to complete the essential functions of her job (see e.g. Yeats v Commissionaires Great Lakes and Perron v Revera Long Term Care Inc).

    Before rendering its decision, the Tribunal referenced some key provisions of the Code regarding accommodation:

    1. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

    (2) No tribunal or court shall find a person incapable unless it is satisfied that the                      needs of the person cannot be accommodated without undue hardship on the person                responsible for accommodating those needs, considering the cost, outside sources of                  funding, if any, and health and safety requirements, if any.

    So the question then becomes, what constitutes undue hardship? As seen in the Supreme Court of Canada’s decision of Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000, “[t]he test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.” The Tribunal added, however, section 17 does not require permanently changing the essential duties of a position or permanently assigning the essential duties of a position to other employees.

    The duty to accommodate also does not require exempting employees from performing the essential duties of their position. The “accommodations” sought by the Employee would not enable her to meet the essential duties of her position, but instead pass them onto another employee. In light of these considerations, the Tribunal concluded the Employee had not discriminated against the Employee.

    The concept of accommodation in the workplace is a frequent discussion topic on our blog (see our past blog posts about religious accommodation, mental illness, childcare obligations and family status). What is interesting about this concept is that every situation is different because reasonable accommodation is very fact-dependent. In this case, the Employee had already undergone surgery and other means of recovery without success. It was evident from her support through WSIB that she would be unable to perform her job’s physical activities for an indefinite period. In fact, WSIB had commenced a re-training program for her shortly before her termination. Employers are held to a high standard when it comes to reasonable accommodation because of the importance of preventing discrimination in the workplace. But tribunals and courts are also aware of an employer’s limitations and employers cannot be expected to provide an infinite amount of accommodation, especially when the disability is permanent. This case shows that the length of accommodation and how core aspects of a job are defined will be large indicators for determining whether an employer has met their duty under the Code.

    As an aside, it is interesting to note that had the Employee in this case been unionized, this may have turned out differently, as collective agreements can be drafted to impose stricter accommodation policies on employees (see e.g. County of Brant v OPSEU).

    If you are an employee suffering from discrimination in your workplace or an employer looking to provide accommodation to an employee, the Employment Law Team at Devry Smith Frank LLP will be happy to assist you.

    By Fauzan SiddiquiBlog