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  • CanLII Help - Outdated Education

    I've been searching CanLII for a few hours now, and could really use some help... I'm trying to add some case laws for my factum.

    Background
    - My ex received a Bachelors of Science Degree in Computer Science in 2004. (it's been 7 years, so she claims it's outdated)
    - She also worked 7 out of the last 9 years in her field.
    - She's been out of work for 2 years, and claims she has been out for too long and unable to find employment in her field, or anything in general.
    - She's done nothing for over a year, since separating.
    - Now, last week she enrolled in full-time school in a whole new field, where she has no experience.

    Since she is claiming zero income, I'm asking that an income be imputed on her. Preferably at her potential rate (education/experience), but at a minimum it should be minimum wage imputed.

    The only related case law I could find is a WSIB case.
    "While the worker’s representative has submitted that his education is outdated as it is 15 years old, we are not persuaded from the information before us that this means that it is no longer valid or applicable to the geotechnical field. Specifically, we observe that the worker’s actual work experience in this field is within the last five years and note that the worker was able to obtain work in this field in 2005, after having not worked in the industry for many years. Therefore, the Panel is persuaded that the worker remains capable of working in this field, and requires no retraining to achieve a position in this industry"
    Decision No. 1369/10, 2010 ONWSIAT 1836 (CanLII)

    Can I use a WSIB case in my family case?
    Does anyone know of any other related case laws?

  • #2
    The WSIB actually sounds like an excellent citation, since it is not just about an argument between parties in a divorce and barbed opinion, it is an analysis by a professional organization with consistant standards and large database to compare.

    Make sure you word your argument carefully to show that it is relevant. You would also do well to search job postings and see if there is anything she is qualified for, and to point out shorter certificate programs at community colleges that could refresh her skills and provide co-op placements within a year or two.

    Comment


    • #3
      Thank you Mess! That's great.

      In my affidavit, I've printed out a bunch of job postings that would be suitable without the need for retaining, and also provided different salary calculators as well. Since her experience is as a DBA, I included some local certification courses as well that are completed in a 40 hour course.

      For whatever reason she has decided not to continue in her field, although she admitted in her affidavit that she could make over $100k with upgrading. Then she did a 40 hour course to get a Security Guard license, but then claimed only night shifts are available and she doesn't want to do that. Now she enrolled in another full time course in a whole new field.

      My disability income doesn't pay much but I don't mind paying for support. I just don't think she should be able to claim no income and choose not to work when we have joint custody with 50/50 access.

      I'm hopeful that I can get at least minimum wage imputed... I just want to make sure I can present the related case laws correctly.

      Comment


      • #4
        Some argument suggestions for you:

        Her education being out of date is countered by the fact that she worked in the field up until the last couple of years. She could easily renew her certifications or whatever and get caught up. She has even admitted that with the right upgrading, she could make a very nice salary.

        She has bounced from new program to new program. She is demonstrating that she is willing to return to education but is deliberately avoiding the aforementioned useful upgrading. Furthermore, choosing fields where she knows the employment opportunities will not be compatible with her desired work hours demonstrates that she is deliberately avoiding employment.

        Sometimes as parents we must make sacrifices for our children, including being employed in a field we do not enjoy as much as we might some other.

        CanLII - 2002 CanLII 41868 (ON CA) is a case which very well explains imputing a previous income to someone who is engaged in education in another field.

        Comment


        • #5
          Thank you so much for your input!

          Quick question about how to properly reference a case law in my factum.

          By looking at different case laws I see 2 options/examples:

          1. ...These are illustrated by the decisions of Decision No. 1369/10, 2010 ONWSIAT 1836 (CanLII)
          " ... and then provide the quote"

          2. ...these are the factors that must be considered. [See Decision No. 1369/10, 2010 ONWSIAT 1836 (CanLII) - Para 42]


          Is it better to/easier for the judge to always give the quotes from the other cases?

          Do we also attach the whole case laws that we reference to the factum, or affidavit... or can we assume the judge already has access to them?

          Comment


          • #6
            Diego, see the factum thread and it will answer all of your questions. Especially look at the link to the Wilson moot, there are examples of factums.

            Comment


            • #7
              Originally posted by Mess View Post
              Diego, see the factum thread and it will answer all of your questions. Especially look at the link to the Wilson moot, there are examples of factums.
              If you read the thread and links carefully and come back with questions it is easier to help you, but it's impossible to teach you it all from scratch if you don't study first.

              Comment


              • #8
                Thank you. I've been reading the factum thread and am using those examples to form my factum.

                From what I can tell, they will write each paragraph then make a reference to a case law at the end of the paragraph. Then they reference all the different case laws again in the Authorities and Statutes section.

                Does that mean we only have to reference the cases and not print out and attach each one for the judge?

                Comment


                • #9
                  That is correct.

                  Within your paragraph you should very briefly summarize, paraphrase, and make short quotations of relevant case law, and then cite it. I would avoid making long quotations of legislation; judges are quite familiar with the Family Law Act, etc. Make your point and cite the act, but don't quote the entire paragraph, the relevant sentence will usually do. If you aren't sure, check here or show it to duty counsel. With case law, this may require some additional quotation to make your point, but keep it very brief. Do not expect a quotation to speak for itself. YOU have to make your point and explain why the case law is appropriate. The case law is back up your point, it is not to make your point for you.

                  Comment

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