Canada Legal .com Articles

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“Does the Internet have any impact on custody and access rights?” Seems like a strange question. But like everything else in life, the Internet has even had an effect on custody and access rights to children.

For example, the right of a custodial parent to move to another province or country, and thus terminate the non-custodial parent’s visitation rights, has been a very hot area of Family law called ‘mobility rights’.

In deciding mobility rights cases, courts have struggled with two competing interests. On one hand, is the right of the custodial parent to move on with her life, move for a new job or marry a new spouse in another province or country. Should her decision to be the child’s primary caregiver be used against her in planning her life ? Then, on the other hand, is the non-custodial parent’s right to maintain a close, loving and healthy relationship with the child and not be prevented from being a critical part of the child’s growth and development and weekly schedule, including weekends, school events, sports, vacations, birthdays and religious holidays.

In mobility rights cases, the courts have expressed the desirability of maximizing contact between the child and both parents and have given consideration to the trauma a child would suffer as a consequence of being removed from the non-custodial parent.

Increasingly, custodial parents seeking to move have advocated the benefits of the Internet to persuade non-custodial parents, lawyers and judges that moving away would not cause as much disruption to the relationship between the child and the non-custodial parent.

The following mobility rights cases are two examples of how judges have incorporated the Internet and electronic communication into court rulings that permitted the child to move away from the non-custodial parent.

In the New York case of Lazarevic v. Fogelquist, 668 N.Y.S. (2d) 320 (Sup. Ct. 1997), the mother wanted to relocate with child to Saudi Arabia in order to reunite with her new husband and family who were living in Saudi Arabia because of an employment opportunity. The father sought to prevent this relocation. The court decided that it was in the best interests of the child to move to Saudi Arabia with the mother, stepfather and half brothers and sisters, but required the mother to comply with specific conditions to ensure that the child’s relationship with his father experience as little disruption as possible. The court ordered the mother to hire, at her expense, a computer consultant in New York and Saudi Arabia to set up a system through which the father and son could communicate through the Internet and by fax. The computer would be for the child’s personal use only and there would also be a telephone line dedicated to communication with his father.

In the case of Sumra v. Sumra, 561 N.W. (2d) 290 (N.D. 1997), the mother sought to relocate with the children to Wales in order to be closer to her family and to pursue employment. The court allowed the move, but required the mother to ensure that the children have unlimited communication with the father by telephone, audiotape, videotape, electronic mail and regular mail.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

A Family Court Judge in New York has prohibited a mother from smoking in the presence of her 13 year old son. But what makes this visitation order extraordinary is that he banned the mother from smoking, even though the child is neither allergic to cigarette smoke nor afflicted with a disease, such as asthma, that could be exacerbated by exposure to cigarette smoke.

Justice Robert F. Julian cited scientific evidence on the generally adverse health effects of second-hand smoke and found that continued exposure to environmental tobacco smoke is not in the best long-term interests of the child. Justice Julien said courts in New York and several other states have banned parental smoking when it was directly related to a current and ongoing malady suffered by an offspring. However, the Judge said he was unable to find any decision ordering parents to maintain a smoke-free environment absent an underlying diagnosis of asthma, allergy or another disorder.

The 2001 case of Johnita M. D. v. David D. D., D-0-37432, arose when the child, Nicholas, complained of smoking during access visits with his mother. Nicholas lives with his father and grandparents, who do not smoke, and has overnight visitations with his mother. In August 2001, Nicholas, through his law guardian, sought an in-camera proceeding to consider the complaint that his mother smokes in the bathroom and in the car during all of his visitations and that the apartment reeks of smoke. Even though the mother argued that the father was the real cause of this complaint to reduce and avoid visitation, Justice Julian decided that the motive for the complaint is not relevant since the behaviour at issue, smoking, is demonstrably dangerous to the child.

The court stated that “even though Nicholas does not presently have asthma, exposure to environmental tobacco smoke apparently significantly increases his risks of developing, either as a child or as an adult, asthma, coronary artery disease, lung cancer, and certain chronic respiratory disorders, to name the most significant conditions.”

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Sometimes, parents separate because of domestic violence, substance abuse or because there is significant antagonism between the parents. There are also instances where there has been a lengthy separation between the parent and child. Sometimes, one parent does not interact appropriately with a child, possibly causing emotional distress to the child. There may be a risk of abduction.

In these cases, the child’s health and safety must be protected during access visits. Supervised access centres offer such parents a method to address these issues while still allowing access visits to occur. These centres provide a safe and secure setting where access visits and exchanges (pick-ups and drop-offs) can take place under the supervision of trained staff and volunteers. Staff and volunteers have special skills and are trained to be aware of issues such as family violence, child development, physical, verbal and emotional abuse, mental health and substance abuse problems. Staff and volunteers are sensitive to the needs of the child, particularly children who are involved in high conflict custody and access disputes.

Supervised access centres provide a safe, neutral and child-focused setting for access visits between a child and the access parent. Supervised access centres ensure the safety of families, staff and volunteers by staggering drop-off and pick-up times, having staff greet the child at the front door and accompany the child during the visit, and by providing enclosed play areas. Some centres record and provide factual observations of the visits.

As an alternative to using a supervised access centre, the parents may both agree to allow a family member or friend to supervise the access visits or to facilitate exchanges.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

The Supreme Court of Canada was asked this question in a case involving a Caucasian Canadian mother and African Canadian father in a dispute regarding custody of their four-year old son (Van de Perre v. Edwards, 2001 S.C.C. 60). Theodore Edwards, a former Vancouver Grizzlies basketball player, was seeking custody of his son. At the trial, the court granted custody to the mother.

The father appealed this decision to the British Columbia Court of Appeal and argued that race was a relevant factor that should have been considered by the court when deciding custody. The appellate court conducted a full review of the evidence in determining the best interests of the child and, indeed, took into consideration the issue of race. The appellate court allowed the appeal and granted the father custody of the child.

The mother then appealed this decision to the Supreme Court of Canada in Ottawa. The highest court addressed the issue of race by stating that ‘the question of which parent will best be able to contribute to a healthy racial socialization and overall healthy development of the child was a question of fact to be determined by the courts on a case-by-case basis.’

In the end, the Supreme Court of Canada decided that an appellate court should not intervene in a trial judge’s decision and granted the mother custody.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

On January 15, 2002, the Ontario Court of Appeal had ruled that section 43 of the Criminal Code of Canada, which allows the use of ‘reasonable force’ by parents and teachers in disciplining children, does not violate the Charter of Rights and Freedoms and will remain in effect. This decision resulted from an application that was brought before the court by the Canadian Foundation for Children, Youth and the Law to remove this section from the Criminal Code on the basis that it is unconstitutional and violates the Charter. Section 43 states:

“Every school teacher, parent or person standing in the place of a parent, is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”

In the decision of Canadian Foundation For Children, Youth and the Law v. Attorney General of Canada, (January 15, 2002), Ontario Court of Appeal, the appellate court ruled that the main purpose of this section is ‘to allow for the use of strictly limited corrective force on children by parents and teachers in carrying out their responsibilities to train and nurture the children’. However, Family Court Judges believe that positive discipline can be done without physical or emotional harm to a child and, generally, do not accept physical discipline as an appropriate method of disciplining children.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

It is common practice to use a personal journal or day-planner to record the history of access, especially in situations of conflict. But in the decision of Hartland v. Rahaman (Superior Court of Justice, Campbell, J., November 14, 2001), the court ruled that the use of the journal was not admissible as evidence.

In that case, the mother prepared a journal related to a child’s behaviour around access visits with her father. The parties in this case were involved in an ongoing dispute regarding the father exercising his access rights. The child was exhibiting problematic behaviour around the time of her access days. The mother notified her family doctor of the situation. The doctor felt that the behaviour could be associated with the access visits and advised the mother to keep an ongoing journal of the child’s behaviour.

The mother then brought an application before a Judge regarding the father’s access. At trial, the mother asked for permission to refer to her journal to help her refresh her memory of the incidents of negative behaviour exhibited by the child. The father applied to have this journal excluded from evidence on the ground that it was hearsay evidence. The court ruled that the journal was not admissible because the mother had no independent recollection of the events recorded in the journal. In addition, the court found that because the mother only recorded the negative behaviour of the child, the value of the evidence was tainted.

Nonetheless, it is recommended that separated parents maintain a written record of visitation in a personal journal or day-planner so that it may be referred to, in the event that there is a dispute as to the time, quantity and quality of access visits. The record should include as much detail as possible, such as the date, time and circumstances of each visit. The issue of admissibility of this evidence will be examined and addressed by your Family lawyer.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

A Custody/Access Assessment is a detailed investigation of a family’s situation by an educated and trained professional such as a social worker, psychologist or psychiatrist.

The assessor will collect information relevant to the children’s relationship with their parents and then recommend a parenting plan that suits the best interests of the children. The assessor conducting the assessment will meet with the parents and the children and, sometimes, with other people who are involved in the children’s life. The assessor will then write a report for the Judge which contains recommendations on custody and access. In most cases, the parents are responsible for the cost of the assessment.

In some cases, the Judge may ask the Office of the Children’s Lawyer, a government agency, to conduct an investigation and report back to the Judge with recommendations. The Office of the Children’s Lawyer may assign a social worker to conduct the investigation or assign a lawyer to meet with the children so that their wishes can be communicated to the Judge.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In the March 2, 2001 decision of the Ontario Court of Appeal in Chapman v. Chapman, the issue was whether access by a grandparent to grandchildren who live with their parents should be imposed over the wishes of those parents and children. The application for access in this case was made by Esther Chapman, the grandmother of 10 year old Eric Chapman and his 8 year old sister Leanna. They are her only grandchildren. The family lives in Cobourg, Ontario, and the grandmother lives in Toronto. The grandmother had visits with the children approximately three to six times annually, usually on religious holidays. Visits with the children were almost always in the presence of their parents. The parents had increasing concerns over the grandmothers diminished capacity to care for the children on her own.

In 1998, the grandmother applied to the court for monthly visits and weekly telephone contact with her two grandchildren.

The provincial appellate court decided that it is the children’s parents – not their grandmother – that have total and final authority to determine if and when the children visit with their grandmother. The court decided that “Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children’s best interests left in the exclusive care of their parents.”

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“Will I get custody of my children after we separate?” The answer depends on the best interests of the children.

The children’s best interests are based on a long list of factors that include the emotional ties between the children and each parent, the views and preferences of the children, the ability and willingness of each parent to provide the children with guidance and education, the plans proposed by each parent for the care and upbringing of the children and the stability of the family unit.

When parents separate, each parent has a right to apply for custody of the children. A Judge will make a decision based on the best interests of the children and on the arrangements that were made for the care of the children immediately after separation.

(applicable to province of Ontario only)

(Click for updated PDF version: Dental Practice Purchase & Sale FAQ)

Headnote: business law, corporate law, purchase and sale of business

by Peter Cusimano, B.Sc., LL.B.

At some time in your career you may decide that you would like to own your own dental practice rather than work as an associate. Owning your own practice can be accomplished by starting your own practice or purchasing an existing practice. This article will focus on frequently asked questions by dentists with respect to purchasing an existing practice. Many of the points discussed will also apply to starting a practice from scratch.

Owning your own dental practice can be a very rewarding experience if you do it right. A dental practice is a complicated business and the purchase of a practice involves many complicated legal issues that require careful analysis and advice from a lawyer. We strongly encourage you to speak to a lawyer as early as possible. Often the biggest and most expensive mistake that purchasers make is that they believe that they only need to speak to a lawyer after they have a signed and offer to purchase. The key to purchasing an existing practice is to ensure that it is properly done from the very beginning and this involves consulting with us as your lawyer to obtain professional legal advice from the very beginning prior to signing an offer to purchase.

Why Do I need to speak to a Lawyer ?

Obtaining professional legal advice will greatly assist you to effectively address the many complicated legal issues involved in the purchase of a dental practice. These issues arise from many sources including: (i) the selling dentist; (ii) an agent or broker; (iii) bank or finance company; (iv) accountant; (v) landlord; (vi) existing associates if any and staff. As such it is important to involve us as your lawyer in the process as early as possible.

What Does a Lawyer do in the Purchase of a Dental Practice ?

In general, as your professional legal advisors, we will act in your best interests and provide professional legal advice and legal service to you including:

• meet with you for an initial consultation to obtain from you the particular facts of your particular situation;
• discuss with you various legal issues that will need to be addressed that relate to dental practices;
• introduce you, if required, to qualified professionals who have experience with purchases of dental practices including: (i) agents/brokers to assist you to find a potential practice to purchase; (ii) representatives of banks or finance companies; (iii) accountants;
• consult with your accountant with respect to your tax situation and the tax situation of the practice including purchase price and other tax related issues such as price allocation and estate planning.
• analyze, explain, and advise you with respect to any existing associate or partnership agreement between you and the current practice where you are currently practising.
• analyze, explain, and advise you with respect to any legal representations made by the selling dentist or the agent if an information package is provided to you by the agent;
• prepare a comprehensive and effective legal strategy for the purchase of the practice that is tailored to your particular situation;
• conduct preliminary legal searches in government records against the sellers to determine if there are any serious problems that require immediate attention such as court judgments against the sellers;
• prepare a detailed introductory letter to the seller (or his/her lawyer) requesting extensive preliminary information from the seller such as information concerning (i) the ownership of the equipment; (ii) liens; (iii) lease; (iv) employment contracts; (v) creditors; (vi) other relevant information;
• prepare a letter of intent to the seller which can be a binding offer to purchase or a non-binding letter depending on your particular situation;
• prepare a comprehensive Agreement of Purchase and Sale in accordance with your instructions setting out the exact terms and conditions of the purchase;
• negotiate the terms and conditions of the purchase with the lawyer for the seller;
• analyze, explain, and advise you with respect to the terms and conditions of financing documents including the loan agreement, grid promissory note, personal guarantees.
• analyze, explain, and advise you with respect to the existing lease of the premises;
• negotiate with the landlord with respect to an assignment of the existing lease or the creation of a new lease;
• address various legal issues including but not limited to those relating to creditors, lien holders, business taxes, patient lists, assignment of telephone number.
• incorporate a holding company for you if necessary or advisable after consultation with your accountant;
• prepare the many legal documents (approximately 30 documents) necessary to complete the transaction including but not limited to: closing agenda, statutory declarations, warranties, assignments, agreements, bill of sale;
• prepare and file a business name registration if required; advise you with respect to the use of business names; consult with the Royal College of Dental Surgeons with respect to approval of the proposed name;
• prepare an associate agreement dealing with various issues including: general employment terms and representations, confidentiality, non-competition, and non-solicitation;
• meet with the lawyer for the seller on the scheduled closing date to exchange legal documents and complete the purchase;
• provide a written report to you and a reporting book after the transaction is completed summarizing the transaction;
• provide any other legal advice necessary to complete the transaction;

In addition to usual issues common to the purchase and sale of any business, there are particular legal issues relating to a dental practice including but not limited to: (i) the handling of patient lists, records, x-rays, and charts, (ii) handling of associates who will not remain with the practice; (iii) completion of unfinished dental work; (iv) appointments that are scheduled by staff before the completion date of the transaction for an appointment on a date after the completion date; (v) procedure for handling of patients requesting the previous dentist.

Who Else Should I Speak To ?

Through our experience we have established contacts with an extensive network of suppliers and professional advisors that can assist you with your purchase. If required we will refer you to these suppliers and/or professional advisors that can be of assistance to you. Together we will actively involve you and consult if required with the following suppliers and/or professional advisors:

• suppliers of dental equipment and dental supplies
• representatives of banks or finance companies catering to dentists
• architects and designers
• makers of neon dental signs
• insurance brokers
• financial planners
• printers for business cards, letterhead, newsletters, brochures
• accountants
• business evaluators
• Internet marketing consultants

What are the Costs Involved in Purchasing and Operating a Dental Practice ?

In budgeting for the purchase and operation of your practice you should ensure that you take into account many expenses including but not limited to:

• purchase price
• applicable taxes including GST and PST
• professional fees for lawyers, accountants, business evaluator, marketing consultant
• security deposit for rent, telephone
• announcement cards
• bank or finance company processing fee
• cost for new sign
• letterhead, brochures, business cards
• office and disability insurance
• leasing cost of telephone, fax machine, photocopier, specialized equipment
• purchase of additional equipment, furniture
• new dental equipment
• new computer
• new dental office management software
• salary for dental assistant, receptionist, hygienist
• continuing education courses
• dental supplies, instruments, sundries.

In consultation with your accountant, you should examine your cash flow projections taking into account the billing cycle and time delay in processing claims from insurance companies. From the cash flow projections, you should be able to determine how large of a line of credit you will require.

How Much Should I Pay for a Dental Practice ?

Often a dentist selling a practice will indicate an asking price that is greater than the current market value of the practice. It is strongly recommended that before determining a purchase price a valuation be conducted by an independent third party qualified to do business evaluations. The expense to obtain an evaluation will often be well worth it especially if the valuation is far less than the price you had anticipated on offering prior to obtaining the evaluation.

The value of a dental practice is based on numerous factors. A bank or finance company will want to know the value of the practice when determining how much financing to provide to you to finance the purchase.

Should I use an Agent or Broker Company ?

Many companies deal with the purchase and sale of dental practices and offer a variety of useful services. These companies often employ real estate agents, business evaluators, and other consultants. The use of these companies can be very useful in finding a practice for sale. Typically these companies are also able to provide you with a detailed information package about the practice you are considering purchasing. This information package will provide us with valuable information and may alert us to potential legal issues that need to be addressed or that require further investigation.

In addition, although representatives of these companies will meet with you and assist you, the representatives typically act on behalf of and in the best interests of the seller and not you. Therefore, you must be very careful as to the information you disclose to these companies.

It is not recommended that purchasers utilize these companies to negotiate or prepare the terms of a letter or intent, offer to purchase, or purchase and sale agreement without seeking advice from a lawyer to consider the critical legal issues. Unless the professionals of these companies are lawyers they may not be qualified to deal with legal issues that need to be addressed in the foregoing legal documents. It is likely that these companies do not conduct any legal searches and may utilize a fill-in-the-blank “standard” agreement which fails to address legal issues critical to your particular practice and which favours the seller. Although this approach will likely result in easy acceptance by the seller, it will also likely result in legal complications for you that will be very expensive and time consuming to resolve.

Can I Bring to My New Practice the Patients I Previously Treated ?

Often when you purchase a practice the handling of patients is often a complicated and difficult issue that requires your careful attention. A dentist purchasing a practice usually wants to bring along those patients that he/she previously treated, often to the objection of the owners of the practice where the dentist was previously located. Similarly, the selling dentist may try to take with him/her as many patients as possible, to the objection of the purchasing dentist. As such, unless this issue is carefully handled, it will result in great frustration and stress for you and possible expensive court action against you if you are not careful.

Several issues have to be carefully examined by a lawyer including the precise wording of any written agreement with the owners of your current practice. If your written agreement contains clauses dealing with non-competition and non-solicitation you may be prevented from competing with your former employer and/or prevented from soliciting any patients previously treated by you. In addition, the Royal College of Dental Surgeons and Ontario Dental Association have developed guidelines with respect to the handling of patients when dentists leave their existing practice to either work elsewhere or to start their own practice.

Based on the foregoing, it is important to discuss this issue with a lawyer as soon as possible.

How Long Does it Take to Complete the Purchase of a Dental Practice ?

Many dentists considering to purchase a practice are currently practising at an existing clinic. As such the purchasing dentist would like to complete a purchase as soon as possible to avoid as much down time between their current practice and new practice. Although both the purchasing dentist and the selling dentist are usually anxious to complete the transaction, it is important that sufficient time be allocated to properly do the work necessary to successfully complete the transaction. In order to do a proper and complete job the minimum amount of time required to complete the legal work for a straightforward transaction is approximately eight to twelve weeks. Complicated transactions may require more time. The entire process from the time you consider to purchase a practice to the time you are practising in your purchased practice may require up to six months or longer.

Often the most time consuming aspect of the completing the legal work is dealing with and negotiating with various third parties such as landlords, lien holders, and financiers. Often these parties have different agendas than the buyer or the seller and they are often known to use various negotiating tactics to take advantage of the anxious purchaser or seller. Purchasers and sellers usually fail to anticipate the use of these negotiating tactics which often leads to increased costs, time delays, and great frustration for both the purchaser and seller.

Based on the foregoing it is imperative to speak and meet with us as soon as possible so that negotiations can be commenced as soon as possible with third parties including landlords, lien holders, and financiers. It has been our experience that purchasers who avoid contacting a lawyer until just before the anticipated completion date will ask the lawyer to rush the completion of the purchase of a practice. In such a case, the purchaser often finds third parties such as landlords, lien holders, and financiers using their negotiating position to take advantage of the situation.

What Can I Expect From the Seller ?

Sellers are generally not as concerned as a purchaser with respect to the well-being of a practice after the completion of a transaction. As a result, a seller sometimes puts pressure on a purchaser to complete a transaction as soon as possible and to ignore any potential problems that have been raised by us as lawyer for the purchaser. Therefore, as a purchaser it is important to be aware of undue influence from the seller and to carefully consider the advice from your professional advisors. It is important to remember that the legal obligation of the lawyer for the seller is to consider only the best interests of the seller. Similarly, the legal obligation of the lawyer for the purchaser is to consider only the best interests of the purchaser. This effect of this obligation is that a lawyer for one party does not consider the interests of the other side unless it is beneficial to his/her own client.

What Non-Legal Issues Should I Consider ?

In addition to legal issues, you must address other matters including: (i) financing; (ii) marketing; (iii) staff and/or associates. In addition, the acquisition of additional equipment may be desired. We should be consulted when dealing with these other matters because in each case legal issues will arise. Listed at the end of this article are valuable references on the internet to assist the dentist with (i) financing; (ii) location; (iii) marketing; (iv) staff and/or associates; and (v) practice management.

Conclusion

Peter Cusimano is experienced in the purchase of dental practices and would be pleased to meet with you and represent you as your professional legal advisor.

Peter Cusimano practices business law in Toronto, Ontario.