Law Times

July 9, 2012

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law Times • July 9, 2012 abilities and is receiving benefi ts from pro- grams such as the Ontario Disability Sup- port Program. Ontario Court Justice John Kukurin, C hild support for adult children can oſt en be a complicated issue. Th e matter becomes even more complex when the child has dis- in what I view as a very thorough analysis, grappled with this issue in Turner v. Ansell. On appeal by the father, Superior Court Justice Edward Gareau recently affi rmed the ruling. Lawyers should read both deci- sions together as they're very illuminating on the issues at play and certainly provide a clear approach to these cases. Th e case spanned fi ve years of litigation and the relief sought by both parents on a variation motion was quite convoluted. However, the issues ultimately dealt with at trial were essentially whether the father ought to continue to be obligated to pay child support for his then-22-year-old daughter who suff ered from various dis- abilities, including Asperger syndrome on the autism spectrum. When the motion to change began, the Evidence key in support variations for adult children COMMENT last year (for background, see "Should support count as child' income," Law Times, May 9). Th ere are a number of no- s table points arising out of the litigation within First, a prior court order pro- vided for payment of table sup- port at a level that was below the guideline table amount payable by the father (although that was a consent order). Kukurin spe- cifi cally noted the father ought to have paid the actual table level of support and not less as the courts shouldn't condone or allow parents to bar- gain away the child' this family. this happen frequently because recipients of child support oſt en agree to somewhat lower amounts of table support in the belief that they have suffi cient means to meet the child' s statutory right. I see child was under the age of majority. Once attaining the age of 18, she was able to re- ceive ODSP benefi ts, a fact that led to a matter before the Ontario Court of Appeal explicit in our advice that even if such agreements become consent orders, the court can set them aside later. Th ose payers would be wise to keep the excess aside just in case as they could face retroactive orders for increases. With respect to children over the age of majority, the legislative scheme will govern. s needs and wish to end negotiations. For those payers, we need to be very Family Law Siemiarczuk Marta being the language in the agreement and corresponding court order). Th e guidelines were to a large extent an Th erefore, if an agreement or or- der provides a basis upon which a child over the age of major- ity is to have the right to table support determined and that method diff ers from the legisla- tive language, the legislation will govern for the same reasons. For example, in Ansell the issue was whether the child had to be "en- rolled" in a full-time program of study (that being the statutory language) versus being in full- time "attendance" in one (that eff ort to decrease litigation around child support. Th e courts are clearly loath to step away from them and so when law- yers are advising clients, this should be at the forefront of the considerations when moving away from the strict language of the legislation even if for perfectly valid reasons. Th ey should take a great deal of care to ensure they explicitly and legiti- mately explain any deviation. Lastly, in cases of support payments reducing table support for a child over the age of majority, an applicant must put clear evidence of actual expenses, living and otherwise, before the court when seeking to pay an amount that' the tables. If applicants can't show through clear evidence what the child' and means are, they're not likely to succeed. In this case, the child received ODSP s less than what's in s actual needs payments once she turned 18. Notwith- standing that she still lived with her mother and therefore her living expens- es presumably didn't change (although there was no evidence on that), Kukurin refused to order any reduction in table support because actual evidence wasn't available to him upon which to base any other amount. While it may be logical to assume that an addition of social benefi ts with living arrangements remaining con- stant would lead to at least some reduc- tion in child support, payers are unlikely to be successful in such claims without actual and direct evidence of needs and expenses. LT for children over the age of majority, the evidentiary record is essential, as the payer father unfortunately learned. To succeed in Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Otta- wa. She can be reached at marta.siemiarczuk @nelligan.ca. Freedom of association requires authentic collective bargaining u SPEAKER'S CORNER BY STEVEN BARRETT For Law Times arrival of a more balanced, less adversarial, Wisconsin- style future for labour relations. According to the editorial, while "lots of workers I n an editorial on June 11, Law Times editor Glenn Kauth welcomed the recent Ontario Court of Appeal ruling restricting the collective bar- gaining rights of RCMP members as signalling the would like to have more leeway to air their concerns to their employers and many Canadians are sympathetic to unions," this "doesn't mean they all want to engage in the traditionally adversarial style of labour negotiations that the Wagner model represents." Before jumping to the conclusion that the RCMP model is one that will and should commend itself to both workers and politicians, let' Court of Appeal actually said and at the model it upheld as being consistent with the constitutional guarantee of freedom of association. As the Court of Appeal recognized, the issue before it s look at what the Ontario Appeal's analysis. While some employees, as the Law Times editorial pointed out, may not want to be part of a trade union of their own choosing under the now well-established Wagner Act approach to collective bar- gaining, one would expect that, under any model most workers would, at the very least, expect that freedom of association protects their right to choose their own inde- pendent, arm' was whether freedom of association "guarantees work- ers the right to be represented in their relationship with their employer by an association of their own choosing" through a vehicle "structurally independent of man- agement." One would have thought the answer to that question was self-evident and would attract a negative response only under the state-imposed single trade- union system adopted in the former Soviet Union that' prevalent today in China and emulated in other countries that would hardly qualify as free and democratic. However, the Court of Appeal surprisingly concluded s that a top-down, employer- or legislatively imposed rep- resentational structure — one that legally and practically prevents employees from being able to choose an inde- pendent, employee-formed association as their vehicle for seeking to engage in collective bargaining — does not violate their freedom of association. This is because, in the court' tive right applicable only where it is impossible for work- ers to advance their collective workplace interests. According to the court, since the employer- and leg- islatively imposed RCMP Staff Relations Representative Program provided some opportunity for employees to express their views about workplace issues, their situation didn't meet this impossibility standard with the result that there was no basis for deriving a s. 2(d) right under the Charter of Rights and Freedoms to bargain collectively. There are a number of concerns with the Court of Court of Canada in the Health Services and Support — Facilities Subsector Bargaining Association v. British Columbia and Ontario (Attorney General) v. Fraser deci- sions remotely suggests that the right to form an indepen- dent association for the purpose of attempting to carry out associational activities — be they traditional Wagner Act collective bargaining or any other lesser forms of workplace consultation — is merely a derivative compo- nent of freedom of association. Indeed, both the editorial and the Court of Appeal' Certainly, nothing in the reasons of the Supreme s-length association. approach overlook the extent to which, far from being derivative, the act of forming and establishing an inde- pendent association lies at the core of what we collectively mean by freedom of association, not only in the context of trade unions and collective bargaining but also when it comes to political parties or other civil society groups. For example, imagine if the only newspapers allowed were state-imposed. This would no more accord with free- dom of expression than a state-imposed union structure respects the guarantee of freedom of association. As professor David Doorey has pointed out in his s the right to engage in a meaningful collective bargaining process, the majority decision in Fraser emphasized the extent to which it is "difficult to imagine a meaningful col- lective process in pursuit of workplace aims that does not involve the employer at least considering, in good faith, employee representations." At the end of the day, the notion that concerns about of workers to seek to collectively deal with their employer through an independent association of their own formation and choosing as a core, self- standing element of freedom of association. Indeed, when it comes to s. 2(d) protection for PAGE 7 freedom of association do not apply where employees are precluded from choosing their own associational representative as long as they have some bare-bones consultative process lending minimal opportunity to provide input to their employer simply ignores the critical importance of ensuring the right to choose to engage in meaningful negotiations and to do so through an inde- pendent associational vehicle. Any model, whether the 70-year-old Wagner approach or an alternative that fails to respect these basic principles, is simply unacceptable in a free and democratic society. Admittedly, in its labour decisions related to free- s view, collective bargaining is merely a deriva- labour law blog, "the main difference between the Chinese model of forced state unionization and the RCMP model is that the police can still form and join their own independent association. But that indepen- dent, employee-selected association has no legal rights at all, so it is largely meaningless. The employer can simply ignore it, with the explicit approval of the Canadian state. Moreover, the Supreme Court has consistently rec- " ognized the importance of international law in inter- preting the scope and content of s. 2(d). International Labour Organization Convention 87, Article 8 of the International Covenant on Economic, Social, and Cultural Rights, and Article 22 of the International Covenant on Civil and Political Rights — all interna- tional treaties binding on Canada — protect the right www.lawtimesnews.com dom of association, the Supreme Court has expressed a strong concern about not constitutionalizing a particular model of labour relations. However, it would be an ironic result indeed if the guarantee of freedom of association ends up constitutionally protecting only the right to representation by a non-independent company union imposed by the employer or legislation together with the right to engage in a process that can at best be charitably described as providing for the opportunity to meet and greet the employer and take part in collective begging. For these reasons, readers should think again before accepting the editorial's suggestion that the Court of Appeal ruling should cause us to reconsider our approach to labour relations unless we also want to rethink our views on cherished principles of democ- racy and freedom. Rather than offering more balance in labour relations, preventing workers from choosing representation by their own independent association and from engaging in an authentic process of collective bargaining would result in an entirely lopsided arrange- ment where the power of the employer and of the state trump any meaningful freedom of association. LT Steven Barrett practises in the areas of labour law as well as constitutional and public interest litigation at Sack Goldblatt Mitchell LLP in Toronto.

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