Mobility A world-wide phenomenon right in your backyard

May 24, 2023

I have always found the term mobility fascinating as it has wide-reaching implications to society that start at the family nucleus to societal standings and through to national as well as international politics and economics.


At a recent meeting of Latin American business entrepreneurs, I took a survey on what was understood by the term mobility.  Without exception the responses where all circumscribed to road transportation raising my curiosity as to whether mobility in a broader sense was more a fixture of North American culture.


The term mobility is ubiquitous and common place in North American culture and it is so much taken for granted by its nationals that it is hard to fathom why anyone would choose to move from their places of birth in a quest for the holy grail of freedom and enjoy the rights and benefits that mobility has to offer.

 

The Merriam-Webster dictionary defines it as “the quality or state of being mobile of movable”.  The Cambridge U.K. dictionary is more practical setting it as “the ability to move freely or be easily moved”.


In a broader sense, mobility acts as a catalyst to achieve a much higher standard of living.  Free access to mobility in itself evokes ease of access to travel and transportation from one city to another where roads are built to promote safe driving; it evokes modern technological advances that guarantee access to information and physical deployment; and it evokes access to education and health care that promotes upward social mobility.


Mobility understood in its broader sense, is an indicator of a developed society, the strength of its economy and the political landscape.

 

In Canada, the legal right of freedom of mobility entrenched in the Canadian Charter of Rights and Freedoms  protects the right of individuals to move from place to place within the country, to leave the country and return to it and to pursue the gaining of a livelihood or to practise on a viable economic basis in any province in the Canadian territory.  That is, if you are a doctor, a lawyer, a carpenter, an electrician, you are guaranteed the right to take up residence anywhere in Canada and not be restricted in your area of work by Provincial legislation aimed at protecting people born in the Province.

Providing physical access to mobility is a right afforded to handicapped people with a view to guarantee the opportunity to contribute their abilities and skills in the workplace and their communities.  A focus on modern advances in hearing and visual devices, limb prosthesis, wheel chairs, wheel chair ramps on roads and homes, electric chairs at home allowing access to a second floor at home, computerized delivery of health care in remote areas, illustrate the priority given to ensuring the physical mobility of individuals in society.


IT communications/ Mobile phones provide easy access to information everywhere and allow individuals to move freely as they engage in communications with others.


The exodus of young high-school graduates leaving their family homes to other cities where their University or College of choice is located is commonplace in Canada and the USA.  This movement increases the population and spending power of these young adults to the benefit of the City that receives them by way of rental units, grocery shopping, city transportation, school materials, clothing, extracurricular activities, partying, bar-hopping, you name it.  They can light up any town with a University/College campus and leave their loaned or OSAP dollars invested in the new communities they move to.   On the other hand, their parents left alone as “empty nesters” divert their attention and energy to increasing their working capacity for the last years prior to a very close retirement and to look after their elderly parents.  An entire generational shift made possible by the guarantee of mobility.

 

The Cambridge dictionary speaks of class/social/economic mobility provided by higher education and work opportunities.  Where education and health care are provided free of charge and/or heavily subsidized by the government, a vast amount of the population is given the opportunity to achieve higher education after completing high-school leading to an upward mobility in social class and standard of living.


Upward social mobility has an impact on the purchasing power of the population making purchases of homes, vehicles and mobile phones the new normal standard of living.


On an international stage, economic mobility speaks of the ability to move capital world-wide and the move or migration of nationals to other countries where their skills are required.  Immigration in response to the lack of safety afforded by certain countries increases the pool of foreign educated professionals into the receiving country.

Cannabis Legalization and family Law

May 9, 2023
Much has been said about the merits of legalization of cannabis in Canada. Regardless of where people fall within the acceptance - condemnation spectrum, it is here to stay. While Parliament has provided the overall framework and limitations, judicial decisions will now further shape its boundaries one case at a time. To date, the courts have dealt with the use of marijuana, in the context of the breakdown of a matrimonial/common law relationship, as a substance that falls into the same category as other illegal, impairing and addiction-inducing substances. The severity or leniency of the judicial decisions varies depending on local provincial laws, applied on a case by case basis, which will now be limited by a new legislative threshold. In Family Law the use of marijuana has historically impacted the issues of parenting and the generation of income for the purposes of determination of child support and spousal support. In the context of parenting, the legal test to decide custody and access to children of the relationship is the best interests of the children. The use of marijuana by a parent or both parents has commonly been wielded as a sword that is believed to lead to impaired judgement and poor decision-making, lowered reflexes, and on many occasions the culprit that lies at the root of conflict in the relationship, all contrary to the best interest of the children. The consumption of marijuana has been traditionally compared with the consumption of alcohol, and even cigarette smoking, cast as a moral judgement on the user and his/her ability to make decisions in other areas of their lives believed to be equally reprehensible. The more lenient opinions held about parents that consume marijuana approve of its use so long as the conduct is judicious when caring for children. For example, using it outside of the home when the children are present; or after they have gone to bed; or ensuring they do not drive while impaired; or not using it to the point that it interferes with the normal daily life such as leading to work absenteeism, falling asleep while the minor children are in their care, failing to feed the children, failing to meet scheduled activities, etc. The stricter more conservative views advocate for zero tolerance on the consumption of marijuana, or alcohol for that matter, to protect the environment the children live in where they can learn and grow safe from addictive influences and conflict. From this perspective, marijuana is viewed as a mind-altering substance that can lead to conflict between the parents, loss of trust in the other parent\s ability to care for the children, questionable parent behaviour that is dangerous and irresponsible; overall an inappropriate substance to expose the children to. Measured against the above sliding scale, the excessive consumption of marijuana to the point of addiction will most likely lead to limitations on custody and access of the children. On the more lenient side of the spectrum, courts are more likely to impose certain conditions on its use to spare the children from direct detrimental effects, not unlike social alcohol drinking or smoking cigarettes, for the health and safety of the children that include designated smoking areas in the house away from the children and not driving when under the influence. When assessing the consumption of marijuana, the court would most likely make enquiries about the history of use of marijuana, the history of abuse of other substances, when marijuana is most likely to be used and whether it is in the presence of the children, medical issues of the children and that require a stricter awareness and level of attention from the parent when caring for the children and medical need by the parent. The legalization of marijuana also raises issues associated as to whether the sale and earnings generated from a previously illegal activity should now be revisited retroactively to include such earnings into the calculation of income; or to include such earnings on a going-forward basis. Considering the multitude of factors that impact the determination of the best interests of the children, the use of marijuana being just one more factor to look at, the impact will slowly develop by the court system on a case by case basis and as prudent parents just make sure your children are safe.

'Til death do us part: Who gets the life insurance proceeds

May 9, 2023
There are few things more awkward than to discuss your own death; who gets to enjoy your hard-earned assets, including your home; or disclosing the identity of the person designated as the beneficiary of a life insurance. Cynics liken the proceeds to found money the beneficiaries have not earned, and raise concerns that all of the sudden your head has a price. Having said that, the freedom of structuring the payout of life insurance proceeds can be a very useful strategy on a few fronts including: a) setting off costs associated with certain assets in your estate. For example, paying out the outstanding mortgage on your home; b) paying for funeral expenses; c) as security against an obligation to pay child or spousal support; d) setting aside the funds until your children attain an age of sufficient maturity to handle a large sum of money (you know, when they turn fifty). Disputes over life insurance proceeds are unfortunately very common. They range from invalidating the designation, to “clawing-back” insurance proceeds to satisfy a child or spousal support claim, to a dispute between two spouses with equally apparent rights to the proceeds. If your affairs are not properly and legally organized, your wishes may end up being trumped by a court decision later on. For example, in Francis v. Brooks, the parties had been married for a long term of twenty-five years. The parties separated in 2012 after an affair of the husband. The husband left the matrimonial home to the wife and moved out. He was diagnosed with terminal cancer in 2013 and, unable to work, returned to the home. The wife bought him out of his share in the home, so that he could have some funds available to him for the remainder of his life. He moved in with his new common law partner and passed away in 2014. Before dying, he designated his common law partner, Ms. Brooks, as the beneficiary of his life insurance and his RRSP. The deceased had never divorced his wife. His wife launched an application in court for dependant relief (support) against the husband’s estate. In the end, in agreeing with the wife, the court not only found that the wife was entitled to receive his assets, but also, his life insurance and RRSP proceeds. Ms. Brooks was not able to prove that she was a spouse (common law) or that she was owed any support by the deceased. In the end, the deceased may have wished to benefit Ms. Brooks, but his wishes did not stand in court, as he failed to make adequate provisions for his wife on his death. In another case, Moore v. Sweet, the deceased was separated from his wife of twenty years. He had designated his first spouse, Ms. Moore, as the beneficiary of his life insurance policy. Ms. Moore agreed to continue to pay the policy premiums after separation. It was a verbal agreement. At his death, Mr. Moore had been residing with his common law spouse for thirteen years, and he had changed the designation of his life insurance policy naming Ms. Sweet as the irrevocable beneficiary of his life insurance proceeds. Unaware of the change, Ms. Moore continued to pay the premiums on the policy. First and second spouse found themselves in court in a dispute over the proceeds. The court found in favour of Ms. Sweet as the designation had been properly made following the requirements under the Insurance Act. In addition, the designation was made irrevocable and in writing, as opposed to a verbal agreement he had entered into with Ms. Moore. The court noted Ms. Sweet had cared for Mr. Moore’s illness until his death, and was in financial need; while Ms. Moore had already received the matrimonial home. Ms. Moore, the disappointed beneficiary, did manage to receive a refund of the premiums paid on the insurance. Insurance Law and designations of beneficiaries are not to be taken lightly. If legal advice is not sought, the law may trump your wishes and promises made “until death do us part”.
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