3 days ago

James Morton Law

Who gets the dog if we split up?

When a couple splits up they divide up their stuff. Entire legal careers are based on division of assets and there is an extensive legislative and caselaw history about who gets what when couples split.

Obviously it is better to divide up your stuff on the basis of mutual agreement. But that can be hard especially if there is sentimental attachment to items. This is especially so when dealing with pets.

People bond with their pets and losing them can be traumatic. As a Newfoundland judge recently said:

“Dogs are possessive of traits normally associated with people, like personality, affection, loyalty, intelligence, the ability to communicate and follow orders, and so on. As such, many people are bonded with their dogs and suffer great grief when they lose them. Accordingly, “who gets the dog?” can pose particular difficulty for separating family members and for courts who come to the assistance of family members when they cannot agree on “who gets the dog”.”

That said, the law has generally held that pets are property just the same legally as sofas, chairs and dinner plates. As a result when a separated couple argues over who gets the pets the issue is one of property law. Who paid for the cat? Was the dog a Christmas present? Who is registered as the owner on the dog licence?

Property law can be complex but it is a well established and definite area of law. A pet has an owner. The courts are well equipped to figure out who that owner is.

Judge White of the Newfoundland and Labrador Court of Appeal recently wrote:

“In the eyes of the law a dog is an item of personal property. That doesn’t mean dogs aren’t important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely). The question is who owns it.”

This may seem harsh but the alternatives are also a problem.

Suppose a Court ordered that a dog, say, was to be shared by the separated couple. That would lead to issues of access and custody similar to those people have over children. And child access and custody is a vastly expensive and litigious area of law. Recreating that for pets would be highly problematic.

Now all that said, if you split up with your partner that doesn’t mean you cannot agree to share the dog or at least let both of you see the dog from time to time. After all the dog probably likes to be with both of you and so you are doing the dog a favour. See MoreSee Less

4 days ago

James Morton Law

Rankin Inlet See MoreSee Less

Rankin Inlet


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Puzzle perfect picture

5 days ago

James Morton Law

I Need An Order Right Now!!!

Civil law cases are painfully slow. Even the simplest case in small claims court takes months to complete and more complex cases can go in for years. Unfortunately law suits take time and no fair legal system can make them run much faster. Facts have to be gathered, witnesses interviewed, questioning prepared, the case presented and finally the judge has to consider and decide. And this ignores possible appeals! Yes, it is true with more judges and courts thing could go a little faster but even with all the resources possible civil cases would still take a long time.

But what about situations where the matter is truly urgent. Say someone is in hospital and there is a dispute over treatment? Or there is a building near collapse and no one is repairing it? Or someone is moving away from Canada and plans to take the kids with them and Dad says if that happens he won’t see the kids anymore? Cases like this cannot wait forever to be decided. A decision is needed right away.

In cases of great urgency the Court will make an immediate order; the order is made on limited evidence and (usually) is only intended to decide things on an interim basis. But the order will deal with what is truly urgent.

While the details of the law on urgent orders is quiet complex the basic principles are fairly straightforward.

First, the person seeking the urgent order has to show they have a decent claim. No matter how urgent if the claim is bogus there is no reason for the court to intervene. The claim does not have to be proven perfectly – it is enough that there is a serious issue to be tried. (Sometimes you need to show a strong prima facie case depending on the type of order you are seeking – bottom line you need a meritorious claim).

Second, the person seeking the urgent order must show there would be irreparable harm caused if the order is not granted. So if the harm could be fixed by money it probably is not good enough – but if the harm cannot be repaired then it’s likely irreparable harm. For example, if the issue is lifesaving medical treatment you have irreparable harm involved. But if the issue is a loss of $1,000 on the sale of a snow machine you do not have irreparable harm.

Finally, the person seeking the urgent order must show that the “balance of convenience” favours granting the order. Basically this asks how much good will the order do compared to the harm it may cause. So if, for example, medical treatment is ordered what harm will it cause? Someone may have said they don’t want to be kept alive by heroic means and maybe there is a real harm keeping them alive. If Mom can’t move to Florida with the kids maybe she will lose a really good job. The court has to balance everyone’s interests.

If all three criteria are met the urgent order may be granted. But as you can see such orders will be granted only in very special cases. See MoreSee Less


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How about wrongfully convicted of a crime and did jail time for nothing?

2 weeks ago

James Morton Law

Can you be fired from your job if you are charged with a criminal offence?

The answer, like so many in law, is maybe.

First, if you are a member of a union the process requires a grievance and you have to work through your union representative – my article deals with non-unionized employment.

The Human Rights Act does prohibit discrimination based on a criminal conviction for which a pardon was granted, but that is very different from just being charged.

The Human Rights Act says:

Prohibited grounds of discrimination
7. (1) For the purposes of this Act, the prohibited grounds of discrimination are race, colour, ancestry, ethnic origin, citizenship, place of origin, creed, religion, age, disability, sex, sexual orientation, marital status, family status, pregnancy, lawful source of income and a conviction for which a pardon has been granted.

In general, you can be fired either for cause – which means you did something that repudiated the employment relationship – or with payment of “reasonable notice”. What that means is an employer is allowed to fire an employee for pretty well any reason at all provided the employer pays some money to the employee.

Usually the amount a judge would award as reasonable notice is around a month for every year employed but that can vary if there is an employment agreement. That said, there is a statutory minimum notice that must be paid unless there is cause. Broadly put that minimum is

• Less than 3 months of employment: Nil
• 3 months – 3 years of employment: 2 weeks
• After 3 years of employment: an additional week per year to a maximum of 8 weeks

These are statutory minimum periods and, as mentioned a court will usually award more.

In terms of criminal charges, the courts have largely found that criminal conduct not related to employment does not constitute just cause. This means that employers who want to terminate an employee for non-employment related criminal conduct, generally, can only do so if they provide the employee with reasonable notice. Someone charged with possession of marijuana who is working as a stockperson at the Co-op probably should not be terminated – and I doubt they would be, unless there was a suggestion of consuming marijuana at work. That said, a notorious charge – say for sexual assault, may justify termination especially in a high-profile position or one that deals with the public – again that “maybe” we see so much in the law.

All that said, if your employer fires you without reasonable notice just because you were charged with a criminal offence you should consider commencing an action for wrongful dismissal to obtain the money you are entitled to. See MoreSee Less

3 weeks ago

James Morton Law

‪Iqaluit Summer 1957

youtu.be/PxllodNEMro via @YouTube‬1957 film taken in Iqaluit Canada, then known as Frobisher Bay on Baffin Island in the Canadian Arctic. Describes briefly a voluntary two month workcamp atte… See MoreSee Less

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