COVID-19: Why now is not the time to put your life on hold

It feels as though life is on hold these days.  People’s careers have been paused.  Kids are home from school.  Our social lives have become considerably more restricted.  We have all been forced to become homebodies, even if we (secretly) don’t mind it. 

However, now is not the time to put your life on hold.  You may have heard that the courts in Saskatchewan have largely been shut down and are only proceeding with emergency situations. As an update, the courts will begin hearing non-urgent applications again in the beginning of June by telephone.  Those of you who are contemplating a separation or divorce may think you are out of luck until the courts begin hearing new matters.  I’m here to tell you that this is not the case. 

There are several process options available to you to deal with your separation or divorce outside of court.  In fact, with the extra time many of us have these days, it makes sense to deal with these matters now so that you can have a fresh start after the COVID-19 quarantine ends. It will soon become mandatory to engage in one of the processes described below before you can seek relief from the courts, so why not get ahead of the curve? 

Collaborative Law:

Through the collaborative law process, parties enter into an agreement right from the start stating that they will not proceed through the court to settle their issues, which saves the heightened animosity and tension court proceedings bring.  It also ensures that the parties are focusing on resolving their issues in a frank and forthcoming fashion, which can ultimately result in time and cost savings and more practical solutions which work best for the parties.  If the parties are ultimately unable to resolve their issues through this process, they can still seek relief of the courts afterward.

You and the other party would work closely with collaboratively-trained and certified lawyers to resolve the legal issues in the case, including property division, custody/decision making, parenting plans, child and spousal support, and divorce.  These lawyers have special training in negotiation, interest identification and option creating, and domestic violence.

Depending on the case and the needs of the parties, other professionals may also be brought into the process.  One such professional is a collaboratively-certified financial advisor, who works to gather property and income information from both parties and provides analysis. They can also be retained by the parties to help them develop a financial plan to move forward with their lives.

The other professional which can be brought in is a collaboratively-certified mental health professional to help the parties deal with issues between them and work together toward settlement.  This professional can also help the parties learn how to best co-parent with each other moving forward and ensure that the children’s needs are identified and incorporated into a final settlement.

In cases where intimate partner violence or control issues are present, the mental health professional can be a key part in helping the parties move forward.  Some people prefer this route as it enables them to face their abuser while helping them appropriately deal with trauma.  This can be particularly helpful in cases where the parties must still co-parent with each other moving forward.

Should you be interested in taking a collaborative approach to your separation or divorce, Curtis Clavelle, the writer of this article, is a collaboratively-certified lawyer and would be happy to discuss the process more: c.clavelle@rslaw.com or 306-933-1341.

Mediation:

This process is for those who would like a neutral third party to help them come to an agreement.  You may choose to also engage a lawyer to help you through the process.  The mediator is a trained professional whose role it is to help the parties communicate with each other more effectively, recognize what their needs are, and help them reach solutions that meet these needs, without taking sides.

This process generally saves time and money as compared to going through the traditional court approach and results in decisions that work well for the parties, since they are ultimately the ones making the decision rather than having a judge make it for them.  Just like the collaborative approach, mediation can also help parties learn how to work with one another post-separation, which can be especially helpful when they must co-parent moving forward. 

If you are interested in using a mediator to resolve your family law matters, Darlene Wingerak of Robertson Stromberg LLP is a mediator experienced in family mediations and she would be happy to discuss the process more: d.wingerak@rslaw.com or 306-933-1392.

Arbitration:

 

In this process, a family arbitrator essentially plays the role of a judge.  The arbitrator hears from both sides and makes a binding decision in order to resolve your family law matters outside of court.  Family arbitrators are lawyers with at least 10 years of experience in family law and have taken training in arbitration, decision-making, and family violence. 

The arbitration process offers quicker decisions than a court process and generally saves the parties money.  This process is well-suited to those who want a third party to make a decision for them, without the delays and formalities associated with the court process.

This is different than the collaborative process and mediation since you are asking another person to make a decision for you, rather than working with the other party to come to a resolution.  However, sometimes arbitrators use a combination of methods in reaching their decision, including negotiation and/or mediation.  You and the other party agree ahead of time how you want the arbitration to proceed.  For example, you could agree that lawyers will not be present, or that you will only submit written materials to the arbitrator rather than giving oral testimony. 

If you are interested in using a family arbitrator to resolve your family law matters, Tiffany Paulsen, Q.C., of Robertson Stromberg LLP is a certified family arbitrator and she would be happy to discuss the process more: t.paulsen@rslaw.com or 306-933-1317.

For more information, please contact:

 

Curtis P. Clavelle

306.933.1341

Email: c.clavelle@rslaw.com

 

Darlene N. Wingerak

306.933.1392

Email: d.wingerak@rslaw.com

 

Tiffany M. Paulsen, Q.C.

306.933.1317

Email: t.paulsen@rslaw.com

Tips on Collecting and Paying Child and Spousal Support Amid COVID-19

These are certainly unprecedented and challenging times.  COVID-19 has created and added stress in all areas of our lives, including incomes and finances.  For those who receive, or pay, monthly child or spousal support there is now an added level of risk.  Will the payor of support be laid off, meaning that the recipient may lose the support they rely on to support themselves or their children?  Will both the recipient and payor lose their jobs and, if so, will there be enough money to go around?  For those individuals facing such scenarios, this article aims to provide some practical tips on how to manage these issues during COVID-19. 

Please note: this article is not meant to provide legal advice and we recommend individuals seek out legal advice relevant to their particular circumstances. 

For the Recipients of Support:

For those individuals receiving support, outlined below are some steps to consider taking when the payor of support has been laid off, their wage has been cut, or there has been some other reduction in their income and they are unable to pay the full amount of support.

  1. Investigate

The first thing you may wish to do is ask some questions of the payor.  Some questions you may consider asking are:

  • Were they laid off or was their wage/salary reduced?
  • How much was their wage/salary reduced by?
  • If they’ve been laid off, are they eligible for Employment Insurance (“EI”) benefits?
    • If so, how much are they receiving?
    • Is their employer “topping up” their income so that, between EI and the “top up”, they are receiving about the same income as before?
  • If they are not eligible for EI, are they eligible for any of the new, government-created support programs?

The main thing here is to ensure that the payor has exhausted their options to maximize their income and to figure out what they are earning.  This allows you to better assess the amount of support they may be able to pay for the time being.

Regarding child support, once you have assessed what the payor’s level of income is, you may wish to determine a rough estimate of what their child support obligation is so that you can compare it to what they paid prior to COVID-19.  The following link provides a calculator which can be used: https://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.asp#Lookup

  1. Assess finances/needs

Once you have some idea of how much support can be paid for now, assess your needs and determine how you can best make this work for your budget and expenses.  How much has your own income decreased due to COVID-19?  Have any of your expenses changed because of COVID-19? 

While your needs are not relevant to the amount of child support, which is based on income alone, needs are considered in determining the amount of spousal support.  However, even if you only receive child support, from a practical standpoint, determining what your needs are is important in budgeting and managing expenses on a reduced income.    

Bear in mind the increased Canada Child Benefit payments and GST payments announced by the government as these could help bridge the gap.  Receiving less support, whether it be spousal or child support, will obviously result in some adjustment to your spending ability. However, it is important to be realistic and remember that money cannot be created from thin air; if the payor is receiving less income, you will have to be practical and accept that there is simply not as much money to go around at the moment.

Ultimately, the payor may not be able to pay the full amount of support you were receiving.  You should also bear in mind that the payor may later apply to the Court to reduce any arrears of support owing based on their reduced income.

If the payor asks you to sign an agreement accepting less support in the interim, we recommend that you seek the advice of a lawyer before agreeing to or signing anything.

  1. Keep communication open

It is a good idea to check in with the payor once in a while to determine if their situation has changed.  Perhaps they have been called back to work or are receiving another source of funds from which support can be paid.

For the Payor of Support:

For those individuals paying support, outlined below are some steps to consider taking when you have been laid off, your wage has been cut, or there has been some other reduction in your income:

  1. Investigate sources of income

If you have been laid off, determine if you are eligible for EI benefits.  If you are not eligible for EI, you may be eligible for the newly introduced Canada Emergency Response Benefit plan.  Investigate your sources of income fully to ensure you are taken care of and have some means of providing support.

  1. Assess finances/needs

Depending on your income level, it could be that you are receiving relatively the same amount of income on EI or the Canada Emergency Response Benefit.  If so, you can continue paying the full amount of spousal and/or child support. 

Even if your income has declined, if there is a court order or other agreement specifying the amount of child and/or spousal support to be paid, you do not want to find yourself in breach of that order or agreement.  Further, you still have a legal obligation to support your children.  Securing an agreement to a lesser amount of support will help you avoid being in breach of the court order or agreement. 

  1. Communicate with recipient to see what their needs are

Once you have assessed your own finances, needs, and ability to pay support, opening the lines of communication with the recipient is the next step.  Explaining your situation in a frank and honest manner will go a long way in building trust.  You should ask questions to understand what the needs of the recipient/children’s household are, whether there has been a shortfall in their income as well, etc.  Once the information is out in the open, you can hopefully work with the recipient to establish a level of support that works for both people during COVID-19. 

  1. Reaching an agreement on the amount of support to be paid

If you are able to reach an agreement with the recipient on a lesser amount of support while your income is reduced, it is a good idea to have the agreement in writing.  Regarding spousal support, parties are allowed to agree to a different amount of support than that specified in an order.  With respect to child support, parents are allowed to agree to different amounts of support, so long as the amount of support provides reasonable support for the children.  The Family Maintenance Act, 1997 (Saskatchewan) provides that a parent has an obligation to provide support for their children to the extent they are capable of doing so.  If your income decreases, the extent to which you are capable of providing support has decreased.  

Before entering into any agreement for support, even a temporary agreement, we recommend seeking the help and advice of a lawyer.

For more information, please contact:

 

Curtis P. Clavelle

306.933.1341

Email: c.clavelle@rslaw.com

Covid-19: Saskatchewan Court of Queen’s Bench Update

Thanks to the quick response and diligent efforts in Saskatchewan, our province’s management of COVID-19 has been quite remarkable. While we will still feel the effects for the foreseeable future, we must learn how to navigate ourselves to return to a new normal.

Yesterday, we saw the provincial government’s re-opening plan, which will allow the economy to re-open in phases. Yesterday, we also saw an updated directive from The Court of Queen’s Bench.

Chamber’s Hearings:

Effective June 1, 2020, the Court’s restrictions respecting hearing only urgent and emergency chamber’s applications will be lifted. These matters will proceed by telephone. Until June 1, 2020, the Court’s restrictions on hearing only urgent and emergency applications remain in place.

Pre-Trial Conferences:

Effective June 1, 2020 pre-trial conference will resume. These will proceed by telephone, or where appropriate and possible, in person. The Court has indicated they will be making efforts to hear substantially more pre-trial conferences over the summer months to assist with the backlog of cases. Further details about scheduling pre-trials will be provided shortly.

Moving Forward:

Robertson Stromberg continues to operate during this time.  We are committed to assisting you with all your needs while also practicing appropriate social distancing protocols. With the latest update from the Court, regular chambers hearings and pre-trial conferences are only five weeks away.

If you had a chamber’s hearing or pre-trial conference that was adjourned due to COVID-19, your lawyer will be contacting you once they receive information about its rescheduling.

If you have a current legal issue, please contact our office to discuss your options with one of our lawyers. We can advise if your matter may qualify to proceed on an urgent or emergency basis. If not, we can provide you with alternative options. Robertson Stromberg has lawyers trained in arbitration, collaborative law, and mediation. Lastly, if required, with the new directive from the Court, we can start to prepare your matter to be heard in June when the court resumes hearing all applications.

To view the full directive from the Court of Queen’s Bench, click the following link: https://sasklawcourts.ca/index.php/home/court-of-queen-s-bench/covid-19-update

For more information, please contact:

 

Andrew R. Gaucher

306.933.1336

Email: a.gaucher@rslaw.com

Commercial Leases and the Impact of COVID-19

The novel coronavirus (COVID-19) continues to affect the day-to-day lives of millions of Canadians. As a result, businesses continue to face issues regarding cash flow, which in turn forces those businesses into difficult decisions as to which obligations they will pay, and which obligations will need to be deferred.

One of the consequences of these difficult decisions is that commercial landlords are now faced with tenants who either cannot pay their rent, do not wish to pay rent or have abandoned or are contemplating the abandonment of leased property. While COVID-19 gives rise to new business considerations, as will be seen below, the rights of the commercial landlord remain relatively unchanged.

This article, originally posted to our website in May, 2020, was amended on June 15, 2020 to reflect the emergency order issued by the Government of Saskatchewan in relation to the eviction of commercial tenants. This moratorium was issued pursuant to the provisions of The Emergency Planning Act.

It should be noted that the moratorium issued only applies to landlord who were eligible, but declined to apply, for the Canada Emergency Commercial Rent Assistance program (“CECRA”). This moratorium was issued in large part to assist new businesses in reopening during COVID-19.

Your Tenant Cannot (or Will Not) Pay Rent

 

As was the case before COVID-19, where a tenant fails to pay rent in a timely fashion the landlord, who has applied under the CECRA, is able to demand the rent and as permitted under the lease, takes steps to distrain or evict the tenant and take possession of the property. The Saskatchewan Legislature has, at this time, not taken any steps to alter the rights and remedies of the commercial landlord.

Before concluding that the tenant is offside their obligations by way of non-payment of rent, consideration should be given to whether the lease has a force majeure clause and if so, what effect that clause may have on the tenant’s position. For more information on this subject, Marinko Jelovic has prepared an article, Force Majeure and the Doctrine of Frustration – COVID-19, which addresses this issue with more specificity. https://www.rslaw.com/2020/03/18/force-majeure-doctrine-of-frustration-covid-19/

Before deciding on a course of action, a landlord may wish to give consideration to their existing relationship with the tenant and the current economic climate. A tenant who has occupied the same property for an extended period of time or is in the midst of a long-term lease, and who has not voluntarily defaulted on payment may still be better than the alternative. When the time arises for the preventative restrictions imposed by the Government of Saskatchewan to be lifted, prospective new tenants may be a rare commodity. If you consider the business foundation for a long-term tenant to be sound you may prefer having your existing tenant when business resumes, rather looking for a new occupant. Short term pain may be balanced by long term gain.

On the other hand, if the tenant is in default and the history of the landlord-tenant relationship is not happy one, this may be an opportunity to end the relationship, with a view to attracting a more desirable tenant.

Much will turn on the landlord’s view of the value of its relationship with the tenant.

To the contrary, where a landlord has failed or otherwise declined to take part on the CECRA program, the landlord is now prevented from re-entering the property, terminating the lease or exercising the right of distraint. The Government of Saskatchewan has, at this time, limited the remedies available to a commercial landlord who has elected not to participate in CECRA.

Your Tenant Abandons Their Lease

 

In Saskatchewan the legislature has declined to, at this time, amend or enact new legislation that would affect a commercial landlord’s rights. As such, the provisions of The Landlord and Tenant Act continue to apply, as do the provisions of the lease itself.

Under The Landlord and Tenant Act, if the tenant abandons their lease leaving rent unpaid a landlord may exercise its right of distress. In doing so, the landlord is permitted to retain and sell personal property left on the premises by the tenant. However, given the current economic climate a landlord may wish to consider whether or not exercising their right of distress makes financial sense.

While The Landlord and Tenant Act permits the landlord to recover the costs of the seizure and sale of abandoned or seized property, the practical reality is that the property may not be worth the cost and effort of sale. Much will turn on the nature of the tenant’s business and the type of property present in the leased space. As businesses continue to attempt to cut down and reduce overhead costs, depending on the nature of the tenant’s business there may be a reduced, or non-existent, resale market for the goods due to COVID-19. Attempting to seize and sell the property may result in substantial costs being incurred, with little net recovery, if any, toward the unpaid rent.

However, if the decision is to move to terminate, or to accept abandonment, the landlord can proceed in the usual way. The landlord’s rights are largely governed by the lease. Most provide that the landlord may bring action to recover unpaid rent, as well as rent for the remainder of the term of the lease, should a tenant abandon its lease (subject of course to the duty to mitigate and find a new tenant as soon as reasonably possible, though depending on the short and mid-term commercial leasing market it may be of little moment). For more information on the subject, please see the following article on enforcing the landlord’s rights: https://www.rslaw.com/wp-content/uploads/2011/12/1226000394Enforcement-of-Commercial-Leases-A-Practical-Guide.pdf

It should be noted that nothing in the in the June 5 moratorium impacts the landlords rights in the event the tenant has abandon their lease. Similarly, the landlords right remain unaffected if the lease expired on or before June 4, 2020.

Where the lease expires after June 4, 2020, and the landlord has elected not to sign up for or participated in the CECRA

Conclusion

 

As the consequences of COVID-19 continue to be felt in the business community, and with no timeline as to when the government imposed restrictions will be softened or lifted, landlords will continue to face business decisions on how to deal with tenants who do not pay their rent. Consideration must be given to the risk of evicting a tenant and attempting to recover unpaid rent versus the cost and time spent attracting a new tenant. Landlords will know that when the Government of Saskatchewan lifts social distancing restrictions, it may still be several months before new tenants can be found, as the economy slowly recovers from the economic downturn. As such, maintaining strong business relationships during this pandemic may best serve to provide a practical benefit down the road. Where the relationship is not so strong, different considerations may apply, and ending the landlord-tenant relationship may be the best outcome.

For more information, please contact:

 

M Kim Anderson, Q.C.

306.933.1344

Email: mk.anderson@rslaw.com

 

Travis K. Kusch

306.933.1373

Email: t.kusch@rslaw.com

Covid-19 Employment Law Update

Following Candice Grant’s March 13, 2020, article, “COVID-19: Information for Employers”, published on our firm website, the Government of Saskatchewan introduced new legislation to address public health emergency leave and temporary layoffs due to COVID-19. This article is intended to provide an update on this new legislation and how it will impact employers and employees.  This information, which is current as of the date of publication (April 13, 2020), is not legal advice and we recommend consulting with your legal advisors for advice specific to your circumstances.

Public Health Emergency Leave

This leave was enacted through Bill No. 207, an Act to amend The Saskatchewan Employment Act, to provide protection to employees who have been directed to isolate themselves and certain other employees impacted by COVID-19.  The changes have retroactive effect to March 6, 2020.

Public health emergency leave is only available during periods in which the Chief Medical Health Officer has declared a public health emergency.  It is available to employees who have been ordered to isolate by one of the following:

  • their employer;
  • the government;
  • their doctor; or
  • the Chief Medical Health Officer for Saskatchewan.

In these situations, the employee would not be allowed to attend work.  The rationalization is presumably that people should not be risking their own health and the health of others in order to work, which is why the introduction of a protected category of leave was necessary.  The length of the leave depends on the length of time the employee has been ordered to isolate.

As indicated above, this leave provides employers an opportunity to order an employee to stay home if they are showing symptoms consistent with COVID-19.  However, if an employer’s direction to self-isolate conflicts with the opinion of a qualified medical practitioner, the opinion of the medical practitioner will prevail.

If an employee is eligible for public health emergency leave, there is no requirement that the employee have worked for any minimum period of time prior to taking leave.

Employees who must care for their children or an adult family member affected by the public health emergency are also eligible for this leave.  For example, in the case of children, this leave applies to parents who must remain home in order to care for their children, which is a common situation as a result of the closure of elementary and secondary schools.  In the case of adult family members, it could be that an employee’s spouse is infected with COVID-19 and the employee must take time off of work to care for their spouse.

It is possible for an employer to designate certain employees as necessary to provide critical public health and safety services, in which case the employee’s ability to access this leave may be limited.

It is important to note that the leave is unpaid.  The employee is only entitled to be paid and receive their benefits if their employer has authorized them to work from home during their period of isolation.  This, of course, depends on the nature of the business.  If working from home is not an option, or the employer does not authorize it, then the employee is not entitled to be paid, although the employee may have access to other provincial and federal financial benefits.  In addition, employees who have entitlement to sick leave under a workplace policy, collective agreement, or other employment contract may be able to invoke that leave rather than take the unpaid public health emergency leave.

We recommend that employers seek out legal advice before making any decisions to order an employee to isolate or any other long term decisions respecting their employees.

Temporary Layoff Provisions

Amendments were also made to The Employment Standards Regulations to provide for temporary layoffs by employers during public health emergencies.  These layoff provisions are only in effect during periods of public emergency.

Normally, under The Saskatchewan Employment Act, employers have to provide notice to employees before laying them off, or pay in lieu of notice.  Under the emergency layoff provisions, employers do not need to provide notice to employees before laying them off, or pay in lieu of notice, for all layoffs that will have a duration of a maximum of 12 weeks in a 16-week period.

Employees who are laid off pursuant to this provision are still considered employees for the purposes of notice or pay in lieu of notice if they are not recalled in time; more on this below.  The upside for employees is that they are able to immediately access supports provided through provincial and federal programs specifically aimed at helping employees laid off during the COVID-19 pandemic.

If the layoff exceeds 12 weeks within a 16-week period and the employee has not been reinstated, the employee’s employment has been considered terminated and they are owed pay instead of notice.  The amount which would have to be paid pursuant to The Saskatchewan Employment Act is based on the employee’s wage and length of service and ranges from one to eight weeks of wages, as follows:

 

Length of Time Employee has been Employed Number of Weeks of Wages Employee must be Paid
More than 13 consecutive weeks to one year of employment One week of wages
Greater than one year of employment but equal to or lesser than three years Two weeks of wages
Greater than three years of employment but equal to or lesser than five years Four weeks of wages
Greater than five years of employment but equal to or less than 10 years Six weeks of wages
Greater than 10 years of employment Eight weeks of wages

Employers and employees should bear in mind that these are minimum standards which could be superseded by employment contracts or collective agreements.  In many cases, an employee will also have additional entitlements at common law which significantly exceed the statutory amounts set out above.  However, any agreement must provide, at minimum, the protection to the employee offered under these new provisions.

We recommend that employers seek out legal advice before making any decisions to lay off employees pursuant to this new provision.

For more information, please contact:

Candice D. Grant

Direct: 306.933.1304

Email: c.grant@rslaw.com

Curtis P. Clavelle

Direct: 306.933.1341

Email: c.clavelle@rslaw.com

Month: April 2020